Protest Boycotts and Federal Labor Laws: The Russian Trade Boycott

Northwestern Journal of International Law & Business, Dec 1981

Part I of the Comment examines the Russian trade boycott, and compares the boycott to ILA protest activity over the past three decades. The survey of protest boycotts demonstrates the wide range of business interests disrupted by union conduct and the extent to which such activities may undermine American foreign policy. Part II analyzes whether the National Labor Relations Board (NLRB or Board) may assert jurisdiction over protest boycotts. The jurisdictional reach of the NLRA will be explored with emphasis upon a line of Supreme Court decisions involving foreign-flag vessels. Particular criticism will also focus upon the Fifth Circuit's recent decision concerning the Board's assertion of jurisdiction over the ILA's boycott in Badovin v. International Longshoremen's Association.4 Part III examines whether a protest boycott constitutes a secondary boycott proscribed by the NLRA's. A theory construing section 8(b)(4) of the Act16 to prohibit protest boycotts will be presented. The theory is then compared to the analyses of the First Circuit in Allied International, Inc. v. International Longshoremen's Association, and the NLRB in International Longshoremen's Association, Local 799 (Allied International, Inc.),'8 two cases dealing with the application of section 8(b)(4) to the Russian trade boycott. Finally, Part IV discusses foreign policy considerations implicated by protest boycotts directed at foreign governments. Recognizing the constitutional power of the federal government to restrain protest boycotts, this Comment concludes that federal authority should exist to quell union activities that threaten foreign policy objectives and the conduct of international relations.

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Protest Boycotts and Federal Labor Laws: The Russian Trade Boycott

Russian Trade Boycott Protest Boycotts and Federal Labor Laws: The Russian Trade Boycott Gerald L. Jr. Maatman 0 1 0 This Comment is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Northwestern Journal of International Law & Business by an authorized administrator of Northwestern University School of Law Scholarly Commons 1 Northwestern University School of Law Follow this and additional works at: Part of the Comparative and Foreign Law Commons, and the Labor and Employment Law Recommended Citation Gerald L. Jr. Maatman, Protest Boycotts and Federal Labor Laws: The Russian Trade Boycott, 3 Nw. J. Int'l L. & Bus. 211 (1981) - Commons Protest Boycotts and Federal Labor Laws: The Russian Trade Boycott Litigation* INTRODUCTION ................................................. I. PROTEST BOYCOTTS AND THE FOREIGN POLICY OF THE ILA ....................................................... A. The ILA and Foreign Governments .................. 1. ProtestBoycotts Against the MilitaryAggression of Foreign Governments .............................. 2. ProtestBoycotts Organizedto Object to Particular PoliciesorActions of Foreigon Governments ........ 3. ProtestBoycotts Intendedto FurtherU.S. Foreign Policy Interests ................................... B. The Russian Trade Boycott of 1980 -81 ............... II. THE JURISDICTIONAL REACH OF THE NLRA AND PROTEST BoYcoTTs ................................................ A. The "In Commerce" Requirement .................... B. The Supreme Court and the Flag-of-Convenience Vessel Cases .......................................... C. Baldovin: The Russian Trade Boycott in the Fifth Circuit ............................................... D. The Validity of the WindwardShipping-Mobile Steamship Test as Applied to Protest Boycotts ....... III. THE APPLICATION OF SECTION 8(b)(4) TO PROTEST BOYCOTTS ................................................ A. The Requirement of a "Labor Dispute" .............. 211 Winner, 1981 Lowden-Wigmore prize. Northwestern University School of Law annually awards the Lowden-Wigmore prize to the best student contribution to a legal publication. 260 267 267 272 Is Federal Control Warranted? ..... . . . . . . . . . . . . . . . . . . IV. FEDERAL CONTROL OF PROTEST BOYCOTTS ............... CONCLUSION ..................................................... INTRODUCTION A labor dispute between a union and employer ordinarily involves union efforts to achieve recognition or bargaining demands, is traditionally enforced by strikes and boycotts,' and inevitably results in economic injury to the struck business.2 In contrast to labor activities I The term "boycott" quickly came into common usage after 1880 to describe all forms of nonviolent intimidation. The word originated in Ireland, following a conflict between Captain Charles Cunningham Boycott, an agent for absentee English landowners, and the Irish Land League, a nationalistic organization devoted to securing fixed tenure and fair rent for Irish tenants. After Boycott rejected the League's demands for reduction in rents and summarily evicted the families on his lands, the League induced Boycott's servants, herders and drivers to desert him, and directed all of the townspeople to cease their relations with the Captain. Three days after the ostracism was initiated, local papers refered to the League's activity as a "boycott." The tenant class thereafter adopted the boycott weapon to harass their English landlords. H. LAIDLER, BoyCOTS AND THE LABOR STRUGGLE: ECONOMIC AND LEGAL ASPECTS 23-30 (1968). In the context of labor-management relations, a boycott may be defined as a union's concerted refusal to deal with an employer. Lesnick, The Gravamen of the Secondary Boycott, 62 COLUM. L. REv. 1363, 1364 n.5 (1962). Boycotts utilized to obtain bargaining goals are generally lawful if directed against and confined to the primary employer, that is, the employer with whom the union has a dispute. The same activities, however, are proscribed if a union attempts to force a secondary, or neutral, employer or person to cease doing business with "any other person .... National Labor Relations Act [hereinafter cited as NLRA] § 8(b)(4), 29 U.S.C. § 158(b)(4) (1976). See generally R. DERESHINsKY, THE NLRB AND SECONDARY BOYCOMrS (1972); Goetz, SecondaryBoycotts andtheLMA4l: A4PathThrough the Swamp, 19 KANS. L. REv. 651 (1971); Lesnick, supra. 2 In 1980, 1.4 million workers in the United States were involved in strikes. 106 L.R.R. 113 (1981). Strikes also accounted for more than 31.5 million days lost to affected employers. Id Neutral employers also may incur economic losses as an intended or unintended byproduct of labor boycotts. Moreover, neutral employers may be without a remedy against certain boycotts, for a union is entitled to engage in primary activity no matter how severe the incidental effects on neutral parties. National Woodwork Mfrs. Ass'n v. NLRB, 386 U.S. 612, 627 (1967), rehearing undertaken to secure bargaining concessions from management are boycotts motivated by political considerations that transcend the economic relationship between the union and the employer. The adaptation of the labor boycott as a weapon to further political views has manifested predominantly in union protests directed at foreign governments.3 Protest boycotts4 utilize the resulting disruption of business redenied, 387 U.S. 926 (1967). Additionally, in some circumstances, unions are allowed to direct boycott and picketing pressures against neutral employers so long as the activity's major impact is on the primary employer. Where a union "follows the struck product" to a neutral distributor, it has the right to picket to persuade customers to boycott that particular product. NLRB v. Fruit & Vegetable Packers Local 760 (Tree Fruits), 377 U.S. 58 (1964). But see NLRB v. Retail Store Employees Union, Local 1001 (Safeco Title Ins. Co.), 447 U.S. 607 (1980) (consumer picketing directed at primary product was illegal where sales of the struck product comprised over ninety percent of the secondary's gross incomes). Activity is also permitted against the secondary employer when it shares a common situs with the primary employer. Sailors' Union of the Pacific (Moore Dry Dock Co.), 92 N.L.R.B. 547 (1950). Finally, where a purported neutral employer is sufficiently involved with the business of a primary employer, the union may boycott the "allied" employer. NLRB v. Business Machs. and Office Appliance Mechanics Bd. Local 459 (Royal Typewriter), 228 F.2d 553 (2d Cir. 1955), cert. denied, 351 U.S. 962 (1956). 3 See text accompanying notes 24-64 in.fra. 4 For the purposes of this Comment, the term "protest boycott" shall be used to refer to labor union activities undertaken to voice opposition to government policies whether the government be domestic or foreign. Historically, strikes motivated by political objectives have been more prevalent in European countries than the United States. See AARON & WEDDERBURN, INDUSTRIAL CONFLICT A COMPARATIVE LEGAL SURVEY 320-42 (1972). European political strikes often involve general strikes against governments to achieve specific goals. See CROOK, THE GENERAL STRIKE 2-9 (1931). For example, general strikes have been undertaken to achieve a definite political concession from the existing government, such as the demand for universal sufferage in the Belgian general strike of 1913, or, more rarely, for the purpose of upholding the existing government against a would-be usurper, as in the German general strike against the Kapp-Putsch in 1920. The general strike also has served as the tool of revolutionists attempting to overthrow governments or the industrial system. The Russian Revolution of 1905 is a prime example of a general strike undertaken for the purpose of forcing large measures of self-government and democratic liberty from an autocracy. Perhaps the most famous political strike transpired in England when two million workers struck without success in support of miners whose wages were reduced after government subsidies to coal operators were removed in 1926. See FARMAN, Tim GENERAL STRIKE OF MAY 1926 (1972); Goodhart, YThe Legality ofthe GeneralStrike in England,36 YALE LJ. 464 (1927). The sole general strike attempted in the United States occurred in 1919, when 60,000 workers in Seattle struck in support of dockworkers demanding higher wages. FRIEDHEIM, THE SEATrLE GENERAL STRIKE 124 (1964). Although many reacted to the strike as a harbinger of Bolshevism among American labor groups, available evidence points to the fact that revolution was not actively attempted by the strikers. Id. at 177. Foreign trade unions have also instituted strikes directed against other governments. Eg., N.Y. Times, Aug. 10, 1981, at 8, col. 1 (Canadian, Finnish, Italian, and Norwegian air traffic controllers boycott U.S. planes to protest U.S. government's dismissal of striking federal employees of Professional Air Traffic Controllers Organization); id., Sept. 30, 1973, at 61, col. 5 (French dockworkers refuse to load military cargoes bound for Chile to protest the military junta in Chile); Latin Dockers Join CastroBoycott, Bus. WEEK, May 1, 1963, at 50 (dockworkers in ten South American countries refuse to handle ships of nations trading with Cuba to protest Castro's policies); N.Y. Times, July 15, 1959, at 3, col. 4 (Ghanaian Trade Union Congress members refuse to handle shipments from the Union of South Africa to protest its apartheid policies). American lations between American companies and the foreign nation as a medium for expressing the union's opposition to particular policies of the foreign government. Although business may be a neutral party in the union's dispute with the foreign country, protest boycotts necessarily obstruct American foreign trade, and discourage American companies from participating in international business markets. The recent refusal by the International Longshoremen's Association (ILA) to handle goods bound for or coming from the U.S.S.R.-as a protest against the Soviet invasion of Afghanistan-illustrates this variety of politically-motivated boycott activity.5 Remarkably, protest boycotts have induced sparse litigation. This may perhaps be explained by a widespread belief that federal labor laws,6 enacted to regulate the relationship between union and employer are not implicated by union activities of a political and international nature.7 Accordingly, the response of business to protest boycotts has labor unions have also organized protest boycotts, albeit on a somewhat more limited scale. These activities have been directed towards the policies of both state and federal governments. E.g., N.Y. Times, July 24, 1975, at 12, col. 4; id, July 25, 1975, at 41, col. 5 (ILA refuses to load any wheat shipments destined for the Soviet Union to protest the sale of grain to the U.S.S.R. by the federal government); id., April 9, 1965, at 65, col. 4 (International Longshoremen and Warehousemen's Union members in West Coast ports refuse to handle products manufactured in Alabama to support the civil rights movement in that state). This Comment, however, will focus upon protest boycotts aimed at foreign governments. This variety of boycott activity is characterized by union refusals to handle goods bound for or coming from a particular country. The union utilizes the resulting cessation of business to direct its protest, if only symbolically or through economic force, toward the foreign government. In contrast to boycotts wherein unions exert pressure against a primary employer to secure bargaining demands, see notes 1-2 supra, American businesses are neutral bystanders in protest boycotts aimed at foreign governments. 5 The ILA instituted its protest boycott against the Soviet Union on January 9, 1980. N.Y. Times, Jan. 10, 1980, at 1,col. 5. For the text of the announcement implementing the Russian trade boycott, see note 70 infra. For a discussion of the ILA's protest activities, see text accompanying notes 65-81 infra. 6 Throughout this Comment reference will be made to federal legislation governing labor relations. The NLRA (National Labor Relations Act) will refer to the Wagner Act, the original legislation enacted in 1935 which created the National Labor Relations Board and established the right of workers to bargain collectively. NLRA, Pub. L. No. 74-198, §§ 1-16, 49 Stat. 449 (1935) (current version at 29 U.S.C. §§ 151-67 (1976)). Congress amended the NLRA with the TaftHartley Act of 1947, and added new provisions including a class of union unfair labor practices and various private causes of action to enforce rights created by the legislation. Labor-Management Relations Act [hereinafter cited as LMRA], Pub. L. No. 80-101, §§ 1-503, 61 Stat. 136 (1947) (current version at 29 U.S.C. §§ 141-87 (1976)). In 1959, Congress further amended the labor statutes with the Landrum-Griffin Act, which among other changes, strengthened the secondary boycott provisions of the LMRA. Labor Management Reporting and Disclosure Act [hereinafter cited as LMRDA], Pub. L. No. 86-257, §§ 1-531, 73 Stat. 519 (1959) (current version at 29 U.S.C. §§ 401-531 (1976)). Unless otherwise indicated, "Act" and "NLRA" will refer to the statute that resulted from the combination of the NLRA, LMRA, and LMRDA. 7 The chief authority representing the view that the National Labor Relations Board has no jurisdiction over union activities undertaken for political purposes is NLRB v. Local 1355, Int'l been to yield to labor pressure and cease trading with the foreign country under union censure, to endure passively the economic effects of the boycotts, or to turn to the federal government for assistance in countering union activity.8 Administrations, when prodded into action by affected private concerns, have limited their support for business to general statements condemning protest boycotts and supporting American participation in foreign trade.9 Even when labor union conduct was perceived to interfere with American foreign trade policy and undercut federal control over international relations, administrations have preferred to resolve the problems caused by protest boycotts through negotiation, rather than legal action.' 0 The recent Russian trade boycott differs markedly from the typical acquiescence characterizing previous protest activities. Numerous legal challenges to the ILA's protest boycott were asserted by business firms suffering from the effects of the union conduct.I Yet, while the reluctance to assert legal challenges to protest boycotts has receded, the litigation arising from the Russian trade boycott demonstrates the difficult legal problems brought to fore in examining protest boycotts. Can protest activity be regulated under the National Labor Relations Act (NLRA)? Are legal remedies available to a private party injured by a protest boycott which interrupts his participation in foreign trade? If labor union activity interferes with the foreign policy of the United States, then in what circumstances should federal control be exercised? Underlying these questions exists the inherent tension between labor's use of the protest boycott weapon and the objectives of American foreign trade policy which encourage the formation of business relations by American companies with other nations. The Russian trade boycott of 1980 -81 provides an opportunity to study and resolve these conflicting interests. Part I of the Comment examines the Russian trade boycott, and Longshoremen's Ass'n (Ocean Shipping), 332 F.2d 992 (4th Cir. 1964). In this case, the Fourth Circuit determined that the Board lacked jurisdiction over a boycott calculated to eliminate trade with Cuba as the union conduct did not involve a "labor dispute" within the meaning of the NLRA. Id at 995. Numerous courts and commentators have also asserted that the NLRB lacks jurisdiction absent the existence of a labor dispute. See Danielson v. Fur Dressers Local 2F, 411 F. Supp. 655, 658 (S.D.N.Y. 1975); Peak v. State Dep't of Indus. Relations, 304 So.2d 796, 801 (Ala. Civ. App. 1976); International Longshoremen's Ass'n, Local 1416 v. Eastern S.S. Lines, 211 So.2d 858, 860 (Fla. Dist. Ct. App. 1968); T. KHa-EE LABOR LAW § 8.02[2] (1979); AARON & WEDDRmuRN, supra note 4, at 322; MoRRis, THE DEVELOPING LABOR LAW 761 (1971). 8 See text accompanying notes 24-64 infra. 9 See text accompanying notes 24-41 frf-a. 10 See text accompanying notes 44-45, 49-56 i./ra. 11 For a discussion of the legal challenges to the Russian trade boycott, see note 92 and text accompanying notes 85-97 in.fra. compares the boycott to ILA protest activity over the past three decades. 12 The survey of protest boycotts demonstrates the wide range of business interests disrupted by union conduct and the extent to which such activities may undermine American foreign policy. Part II analyzes whether the National Labor Relations Board (NLRB or Board) may assert jurisdiction over protest boycotts. 13 The jurisdictional reach of the NLRA will be explored with emphasis upon a line of Supreme Court decisions involving foreign-flag vessels. Particular criticism will also focus upon the Fifth Circuit's recent decision concerning the Board's assertion of jurisdiction over the ILA's boycott in Ba/dovin v. InternationalLongshoremen'sAssociation. 4 Part III examines whether a protest boycott constitutes a secondary boycott proscribed by the NLRA.' s A theory construing section 8(b)(4) of the Act 16 to prohibit protest boycotts will be presented. The theory is then compared to the analyses of the First Circuit in Allied InternationalI,nc. v. International Longshoremen'sAssociation,17 and the NLRB in InternationalLongshoremen's Association, Local 799 (Allied International,Inc.),' 8 two cases dealing with the application of section 8(b)(4) to the Russian trade boycott. Finally, Part IV discusses foreign policy considerations implicated by protest boycotts directed at foreign governments. 19 Recognizing the constitutional power of the federal government to restrain protest boycotts, this Comment concludes that federal authority should exist to quell union activities that threaten foreign policy objectives and the conduct of international relations. PROTEST BOYCOTTS AND THE FOREIGN POLICY OF THE ILA A labor union is an organization of workers that exists to promote the economic interests of its members.2° While concern over international affairs would seem irrelevant to that purpose, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO or Federation) has formulated and presented policy positions on foreign affairs issues on behalf of its membership since its inception in 1955.21 Indeed, the efforts of the Federation have gone beyond a mere self-interest in foreign trade and tariff laws, to include advocating the recognition of particular foreign governments and criticizing the conduct of foreign relations by our own government. 2 Further, similar to 20 The primary function of a modem union is collective bargaining. It is through collective bargaining that employees obtain a relative equality of bargaining power with their employer, because the collective bargaining process compels the employer to deal with workers not as individuals but as a group. Seegenerally BARTOSIC &HARTLEY, LABOR RELATIONS IN THE PRIVATE SECTOR 2-3 (1977). 21 The foreign policy of the American labor movement is a distinct phenomenon which has been the subject of scholarly writing. See C. GERSHAM, THE FOREIGN POLICY OF AMERICAN LABOR (1975); R. RADOSH, AMERICAN LABOR AND UNITED STATES FOREIGN POLICY (1960); Godson, The,4FL ForeignPolicyMal'ngProcessFromthe Endof World WarII to the Merger, 16 LAB. HIST. 325 (1975). At the first meeting of the AFL-CIO, the Federation adopted a lengthy foreign policy statement which sought to "help our nation evolve and execute an effective democratic foreign policy." DAILY PROCEEDINGS & EXECUTIVE COUNCIL REPORTS, PROCEEDINGS OF THE FIRST CONSTrrIUTIONAL CONVENTION OF THE AFL-CIO 101 (1955) (report of the Resolutions Committee on Foreign Policy). To achieve this objective, the Federation would endeavor to influence government decision-making "through democratic processes." Id George Meany, the late President of the AFL-CIO, best expressed the philosophy underlying the Federation's concern with international affairs. He asserted that: [t]here are alot of people who think that we have no business getting involved in foreign policy. They think foreign policy should be left to the politicians or the professors. They seem to think that the workers of America have no interest-or no stake-in what happens in this world. . . We have as much right as anyone else, and are as determined, to speak out on matters of foreign policy-because we have a real stake in foreign policy.... More than that, we have a deep dependency on the survival of freedom in this dangerous world. For, without freedom,. . . unions cannot flourish. And a world without unions becomes a vast sweatshop. . . and thereby threatens the living standards of all Americans. So if idealism is no longer persuasive in these cynical times, we stake out a bold claim of self-interest. DAILY PROCEEDINGS & EXECUTIVE COUNCIL REPORTS, PROCEEDINGS OF THE TENTH CONSTrruTIONAL CONVENTION OF THE AFL-CIO 22-23 (1973) (opening address of George Meany). 22 Foreign policy issues are a frequent subject of discussion at most AFL-CIO conventions and executive committee meetings. These debates have sometimes resulted in the censure of particular foreign governments. DAILY PROCEEDINGS & EXECUIVE COUNCIL REPORTS, PROCEEDINGS OF THE ELEVENTH CONSTITUTIONAL CONVENTION OF THE AFL-CIO 223 (1975) (resolution condemning government of Indira Ghandi for repression of freedom in India); id at 450 (resolution expressing disapproval of the British government's administration of Northern Ireland); 3:211(1981) other groups exercising the first amendment right to petition the government, the AFL-CIO influences foreign policy decision-making through its lobbying activities designed to persuade legislators, officials and the public to adopt its views.2 3 The ILA has distinguished itself among American labor unions for the frequency and intensity of its protests against the policies of foreign governments the union considers inimical to its own interests, and that of the United States. In contrast to the lobbying efforts of the AFLCIO, longshoremen have sought to influence foreign policy through protest boycotts designed to interfere with business relationships that American firms have established with foreign nations under the union's interdiction. The ILA's opposition to the policies of foreign governments has manifested in refusals to load or unload goods destined for or coming from particular foreign countries. In view of the essential role maritime unions play in the transportation of goods through international channels,24 an inevitable effect of the ILA's protest boycotts has been DAILY PROCEEDINGS & EXECUTIVE COUNCIL REPORTS, PROCEEDINGS OF THE TENTH CONsTIruTIONAL CONVENTION OF THE AFL-CIO 78-80 (1973) (resolution approving of economic sanctions instituted against Rhodesia and the Union of South Africa by black African nations); DAILY PROCEEDINGS & EXECUTIVE COUNCIL REPORTS, PROCEEDINGS OF THE SECOND CONSTITUTIONAL CONVENTION OF THE AFL-CIO 420-36 (1957) (resolution condemning the U.S.S.R's invasion and occupation of Hungary). The AFL-CIO has also concerned itselfwith our own government's conduct of international relations. See, e.g., Detente" HearingsBefore the Sen. Comm on For. Relations, 93rd Cong., 2d Sess. 371-411 (1977) (statement of George Meany criticizing administration policy fostering detente); DAILY PROCEEDINGS & EXECUTIVE COUNCIL REPORTS, PROCEEDINGS OF THE SEVENTH CONSTITUTIONAL CONVENTION OF THE AFL-CIO 270-83 (1967) (resolution supporting United States involvement in Vietnam War). 23 Political activism is one of the expressed goals of the AFL-CIO. It devotes a great deal of effort to informing legislators on the objectives of labor and to advising the public about the voting records of various candidates. The Federation also has legislative representatives on Capitol Hill and has a special committee, known as the Committee on Political Education, to campaign for acceptance of favorable legislation. See generally Holloway, The PoliticaMlachineoftheAFLCIO, 94 POL. SCI. Q. 117 (1979). 24 To enable vessels to safely transport their cargoes, it is important that the cargo be well stowed, that the vessel keep her trim, and that one portion of cargo may not injure another by contact, leaking, fumes, or heat. The business of stowing ships and of breaking out cargo at the port of delivery is conducted by stevedore companies. These firms employ longshoremen to load and unload cargo. See 1 KNATH, BENEDICT ON ADMIRALTY § 235 (7th ed. 1974). Longshoremen are unionized in every American port. The ILA represents approximately 77,000 maritime workers in 478 locals in ports along the Atlantic and Gulf coasts and in the Great Lakes. U.S. BUREAU OF LABOR STATISTICS, DEPT OF LABOR, DIRECTORY OF NATIONAL UNIONS AND EMPLOYEE AsSOCIATIONS-1979 33 (1980). Thus, any goods traveling through these ports will be handled by ILA members. As a result, concerted action by ILA locals can have a devastating effect upon foreign commerce. See, eg., U.S. v. International Longshoremen's Ass'n, 147 F. Supp. 425 (S.D.N.Y. 1956) (strike among ILA unions enjoined as national emergency as industry-wide work stoppage threatened health of national economy). the disruption of American foreign trade. A significant byproduct of these protests is also the interference with American foreign policy posed by the longshoremens' disagreement with these policies or unwillingness to conduct themselves as the policies require. A brief survey of the ILA's protest boycotts illustrates not only the effectiveness ofthese campaigns in impairing trade with various foreign countries, but also the failure of our government to eliminate union interference with the conduct of American foreign policy. A focus upon the ILA's activities thereby provides a frame of reference for subsequent analysis and discussion of the availability of legal relief for private concerns injured by protest boycotts, and the propriety of intervention by the federal government to restrain such conduct. A. The ILA and Foreign Governments 1. ProtestBoycotts Against the MilitaryAggression ofForeign Governments Communist governments have been the principal targets of the ILA's protest activities. In turn, Soviet military interventionism has been the major motivating force for many of the boycotts the union has organized during the past three decades. The first boycott campaign implemented by the ILA originated in 1950 to protest the involvement of the Soviet Union and the People's Republic of China in the Korean War. ILA locals in the port of New York initiated the protest boycott by announcing their refusal to service Russian ships or handle cargoes bound for the U.S.S.R.25 As sporadic boycott incidents spread to other ports and affected a significant amount of shipping worked by the union,26 President Truman rebuked the ILA and cautioned its locals to refrain from intruding in foreign policy matters.27 Nevertheless, the ILA's executive committee backed the locals, and officially endorsed a boycott of Soviet ships and goods.2" Despite the complaints of affected shipping companies, the union's leadership later extended the boycott to cover'products coming from or destined for the People's Republic of China and Soviet satellite countries in Eastern Europe.2 9 The ILA thereafter continued its policy of refusing to service Soviet ships and cargoes throughout the Cold War era on an informal basis.3 0 Locals often ignored the policy as the union's executive committee did not strictly enforce the boycott policy in Atlantic coast ports worked by ILA members. 1 Protest boycotts were officially reinstated, however, during periods of Soviet military aggression. In 1956, longshoremen refused to handle goods bound to or coming from Soviet-bloc countries to protest the Russian invasion of Hungary.32 ILA locals in the harbor of New York expanded the scope of the boycott to include diplomatic materials and baggage of Eastern European diplomats arriving at the United Nations.33 After the State Department expressed fears of retaliation against American embassies, the ILA eased the boycott, and exempted diplomatic consignments to Soviet satellite diplomats and consular personnel. 34 Similarly, in 1968, the union implemented a boycott of all goods destined for Russia and its Eastern European allies to protest the occupation of Czechoslovakia by Warsaw Pact troops. 35 Exceptions to the boycott were again made to ease State Department apprehensions concerning foreign reprisals.3 6 Neither the ILA's protest boycotts instituted during the Czechoslovakian and Hungarian crises nor during the Korean War were ever challenged in the courts. ProtestBoycotts Organizedto Object to ParticularPolicies or Actions of Foreign Governments The ILA has also engaged in boycotts organized for the purpose of condemning particular policies adopted by foreign countries in governing their own internal affairs. Generally, the union's paramount concern has been human rights. Accordingly, the apartheid policy of the Republic of South Africa and Rhodesia (Zimbabwe) has subjected both countries to protest boycotts initiated by longshoremen.3 7 The repression of political rights by the Pinochet regime in Chile has likewise precipitated boycotts by the ILA.3" Moreover, in 1979, shortly after the seizure of American diplomatic personnel in Tehran by Iranian militants, the ILA refused to load or unload any cargo destined for or coming from the Islamic Republic of Iran39 Finally, and most recently, the with the Soviet Union, on their neighbor, Czechoslovakia, whose new liberal government had extended additional freedoms to its people." Id 36 Id 37 In 1963, the ILA called upon the International Confederation of Free Trade Unions (ICFTU) and the International Transport Workers Federation (ITF) to convene a conference of longshoremen from major ports of the world to explore the possibilities of a world wide industrial boycott against the Republic of South Africa on account of its apartheid policies. The AFL-CIO also supported the ILA's position. DAILY PROCEEDINGS & EXECUTIVE COUNCIL REPORTS, PROCEEDINGS OF THE FIFTH CONSTITUTIONAL CONVENTION OF THE AFL-CIO 265 (1963). In March, 1972, an ILA local, with the backing of the union's executive committee, refused to unload a shipment of Rhodesian chrome in Burnside, Louisiana, on account of the African nation's white supremacist policies. N.Y. Times, Mar. 20, 1972, at 2, col. 6; id, Mar. 22, 1972, at 5, col. I. 38 Id, April 8, 1979, at 8, col 1.See also DAILY PROCEEDINGS & EXEcUTIvE COUNCIL REPORTS, PROCEEDINGS OF THE THIRTEENTH CONSTITUTIONAL CONVENTION OF THE AFL-CIO 406-07 (1979) (resolution supporting ILA boycott of Chilean goods to protest Chile's banning of trade unions). 39 N.Y. Times, Nov. 9, 1979, at 12, col.2. The International Longshoremen's and Warehousemen's Union (ILWU), which represents longshoremen on the West Coast, joined in the boycott of Iran. [1979] 284 INTL TRADE REP. U.S. EXPORT WEEKLY (BNA) at A-2. Its action immediately affected 100,000 metric tons ofpaper which were due to be shipped from Portland, Oregon, to Iran aboard the Hoegh Opel Id The Transport Workers Union of America (TWUA), which loads and unloads air cargo, also joined the ILA's lead, and refused to handle cargoes carried by Air Iran originating from U.S. air terminals. Id at A-1. Additionally, the International Association of Machinists (IAW)stopped servicing Iranian planes in American airports. [1980] 4 DAILY LAB. REP. (BNA) at A-4. Railroads linked to port areas also experienced bottlenecks as the Brotherhood of Airline and Railway Clerks (BRAC) declined to handle rail cars with cargoes destined for Iran. Id The ILA's boycott in East and Gulf Coast ports stalled shipments of grain, oil drilling equipment, and other machinery. [1979] 284 INT'L TRADE REP. U.S. EXPORT WEEKLY (BNA) at A-1. union instituted a twenty-four hour boycott on May 7, 1981, against British-owned ships to protest the death of IRA political prisoner Bobby Sands, and to underscore "its opposition to the actions of the British government in Northern Ireland and... its continuing support for fundamental human rights throughout the world."' Of limited duration and economic effect, these boycotts did not produce litigation or arouse State Department objections.4' The union action affected Iran more severely than the asset freeze and other sanctions implemented by the Carter administration. As Iranian funds to pay for U.S. food exports were exempted from the assets freeze order, Iran successfully contracted to purchase considerable amounts of grain. Id As a result of the ILA's boycott, and that of other unions, however, U.S. exports to Iran were effectively blocked. As a result, the Khomeini government had to seek alternative sources to make up for import losses. The significance to Iran of the protest boycott is suggested by the fact of Iran's dependence upon imports for 35% of its domestic consumption, of which one-quarter came from the United States. The leadership of the ILA, in conjunction with the ILWU, IAW, BRAC, and their Canadian affiliates, called upon the London-based International Transport Workers Federation (ITF), an international organization of transportation workers, to undertake "world-wide industrial action against Iran in retaliation for that country's holding of American hostages. [1980] 4 DAILY LAD. REP. (BNA) at A-4. The ITF, however, refused to take substantive action, or to issue an official policy statement supporting the steps to stop Iranian shipments. [1980] 11 DAILY LAB. REP. (BNA) at A-1. In this country, the AFL-CIO officially supported the Iranian boycott. Lane Kirkland, President of the AFL-CIO, asserted that the ILA's action "... . is a perfectly normal, spontaneous reaction of workers faced with an opportunity to demonstrate how they feel about the conduct of Iran, [and] the seizure of Americans as hostages... . I certainly will do nothing to discourage that action.. " Remarks of Lane Kirland, Columbia Broadcasting System interview on "Meet the Press," Washington, D.C. (Nov. 25, 1979), reprintedin [1979] 284 INT'L TRADE REP. U.S. EXPORT WEEKLY (BNA) at A-2. Kirkland also suggested that he would not discourage a boycott by longshoremen of Soviet grain shipments from the U.S. if the U.S.S.R. were to sell wheat to Iran to counter their loss of American imports. Id After the United States-ran Accord ending the hostage crisis was signed on January 19, 1981, Iran resumed its purchase of American grains. [1981] 348 IN'L TRADE REP. U.S. EXPORT WEEKLY (BNA) at C-I. More than two months later, on March 27, 1981, the ILA announced that it had lifted its boycott of cargoes bound to or coming from Iran. Interview with Mr. Lawrence Malloy, Public Relations Dep't, ILA, New York, N.Y. (Mar. 30, 1981). In terminating the boycott, ILA President Gleason lauded the union's membership for their support "in a united effort to convince terrorists that holding innocent diplomats is a violation of international law and against our human dignity as Americans." [1981] 352 INTL TRADE REP.U.S. EXPORT WEEKLY (BNA) at C-6. 40 [1981] 88 DAILY LAB. REP. (BNA) at A-9, 10. In a resolution adopted by the union's Atlantic Council, the ILA leadership asserted that "as the membership.. . believes that the unification of Ireland is the only way to bring an end to the sufferings and the violations of human rights in Northern Ireland[,]. . . . [olue of the most visible ways to draw public attention to these wrongs is through peaceful public demonstrations. ...Id at A-10. The ILA also boycotted British ships in 1972 following disturbances between the IRA and the English government. N.Y. Times, Feb. 6, 1972, at 12, col 7. 41 The ILA has also participated in American maritime union protests against the Arab boycott of Israel. Unlike the protest activities discussed in the text accompanying notes 37-40, this boycott produced substantial foreign dislocations. In 1960, the Seafarers' International Union (SIU)picketed vessels flying the flag of the United Arab Republic to protest Egyptian curbs on the ProtestBoycotts Intended to Further U.S. ForeignPolicy Interests The ILA has also implemented protest boycotts in situations where the union perceived that American foreign policy measures were inadequate to protect the interests of the United States. Notwithstanding the motivations underlying the ILA's activity, these boycotts have tended to impair the government's conduct of international relations. The ILA instituted protest boycotts in the late 1960 's to assist in the Vietnam war effort. Under the maritime policy formulated by the U.S. government, five foreign ships had been disqualified from carrying government-financed cargoes, but administration policy did not prohibit these ships from entering American ports to pick up private cargoes, nor did the disqualification apply to other ships under the same flag or ownership. 2 In 1966, the ILA announced that its members would refuse to load vessels of all foreign countries trading with North Vietnam unless the administration took effective steps to stop allied nations from engaging in such trade4. ' After the ILA's boycott interfered with the access of several European shipping firms to U.S. ports, the State Department criticized the union, and indicated that the national interest would best be served by continuing to seek a solution on a government-by-government basis.' The Johnson administration, however, succumbed to the wishes of the freedom of the seas, loss of seamen's jobs due to the Arab boycott, and mistreatment of SIU members on American ships passing through the Suez Canal. N.Y. Times, April 14, 1960, at 62, col. 6; i4, April 21, 1960, at 61, col. 5. When ILA locals joined in the picketing of UAR vessels in New York Harbor, the owner of one of these vessels, the Cleopatra, unsuccessfully sought to enjoin the picketing in federal court. See Khedivial Line, S.A.E. v. Seafarers' Int'l Union, 278 F.2d 49 (2d Cir. 1960) (reliefdenied as federal courts have no power to grant injunctive relief in admiralty). The union actions evoked retaliatory picketing of American shipping in the Middle East. N.Y. Times, April 19, 1960, at 74, col. 2; Id, May 6, 1960, at 1,col 3. UAR officials endorsed the boycott of American vessels, and condemned the United States government for its failure to control American maritime unions. Id, April 28, 1960, at 70, col 8. The Eisenhower administration urgently attempted to negotiate with the unions through AFL-CIO President Meany. Id, May 4, 1960, at I, coL 3. Under Secretary of State Dillon began extended discussions with AFL-CIO Special Counsel Arthur Goldberg, and reached a settlement on May 6. Id, May 7, 1960 at I, col. 6. The union agreement to stop picketing was made in return for a detailed statement of government principles on maritime policy issued by the State Department, including a committment that the government would consult with the AFL-CIO and its maritime unions on future developments affecting American vessels and seamen in the Middle East and would take new steps to halt Arab blacklisting. See 42 STATE DEP'T BULL. 834-35 (1960); N.Y. Times, May 8, 1960, § 4, at 4, col. 1. 42 N.Y. Times, Feb. 19, 1966, at 1, col. 4. Northwestern Journal of International Law & Business ILA by adding more ships to the government blacklist.4 5 Thereafter, the union's executive committee did not compel locals to follow the ILA boycott policy toward North Vietnam. The ILA did, however, direct boycotts against foreign governments critical of American involvement in Vietnam. In 1968 , the union refused to handle Swedish ships and cargoes to protest that government's aid to North Vietnam, and acceptance of American military deserters.' Further entanglement in foreign affairs arose when the ILA refused to handle goods bound for Australia to protest that government's criticism of American participation in Vietnam.4 7 Australian dockworkers had instituted a strike against all U.S. shipping to place economic pressure on the American government to influence its Vietnam policy. 48 The ILA acted in retaliation, and lifted its boycott only after the Australian government pressured its unions to cease their strike of American shipping.4 9 The protest boycott campaign which posed the most significant interference with federal control over international relations was the ILA's boycott of Cuba from 1960 to 1964. Essentially, the boycott arose on account of the longshoremen's disagreement with the government's measures to control foreign trade with Cuba. While President Kennedy attempted to secure the cooperation of Western European countries in a blockade of the island in 1962 , the administration also decided to close American ports to ships that on the same continuous voyage were delivering goods to Cuba. 0 Believing that the government solutions were "meaningless" and "weak action,"'51 the ILA instituted a total boycott of all ships engaged in Cuban trade.52 The union's actions evoked State Department fears that the boycott would complicate relations with European allies,53 and provoked complaints by foreign governments.54 The administration gradually toughened its stance against Cuba. In 1963, it established a blacklist to prohibit individual foreign ships trading with Cuba from carrying American-financed cargoes.55 Despite this policy, the ILA rejected a State Department request to modify its stance, and indicated that its boycott would continue to apply to all ships trading with Cuba regardless of the vessel's status on the government blacklist. 56 The administration's increasing inability to eliminate the ILA's interference with foreign commerce led private parties to challenge the protest boycott under federal labor laws. In Ocean Shipping Service, Ltd (Local 1355, International Longshoremen's Association) ,57 an American stevedore firm asserted that the union's refusal to supply its members for work on a vessel which had engaged in Cuban trade violated section 8(b)(4) ofthe NLRA. This provision provides in pertinent part that: It shall be an unfair labor practice for a labor organization or its agents engage in... or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to... handle or work on any goods ... or to perform any services ... where an object thereof is ...forcing or requiring any person.., to cease doing business with any other person... Penello v. Local 1355, Int'l Longshoremen's Ass'n, 227 F. Supp. 164, 167-68 (D. Md. 1964) . See also note 50 supra. 56 N.Y. Times, Jan. 21, 1964, at 58, col 5; id, Mar. 29, 1964, at 16, col. 4. 57 146 N.L.R.B. 723 (1964). 58 NLRA § 8(b)(4), 29 U.S.C. § 158(b)(4) (1976). Since the ILA's stated objective was to eliminate trade with Cuba, the stevedore argued that the union's boycott contravened section 8(b)(4) because it forced neutral firms "to cease doing business" with other companies trading with Cuba. In defense, the ILA contended that the Board lacked jurisdiction over the alleged unfair labor practice because the union's refusal to handle Cuban cargoes and ships on political grounds did not constitute a "labor dispute" within the meaning of the NLRA. The Board rejected the "labor dispute" requirement as a limitation on its jurisdiction, and found that the ILA's politically-inspired conduct violated section 8(b)(4).59 On appeal, the Fourth Circuit reversed.60 The court interpreted the NLRA as conditioning the Board's jurisdiction on the existence of a labor dispute.6 As the "union activity • . .pertains to a general political question," 62 the court reasoned that the Board lacked jurisdiction over the protest boycott. Yet, despite this determination, the Fourth Circuit went on to review the merits of the Board's decision.63 The Ocean Shipping court found that there was no secondary boycott since both elements necessary for a section 8(b)(4) violation---(l) "threats, coercion or restraint," and (2) "an object of forcing or requiring any person.., to cease doing business with any other person . . ."-were absent. In support of its conclusion, the Fourth Circuit reasoned that the refusal to work one ship did not constitute "threats, coercion or restraint," and maintained that the union's only object was the elimination of trade with Cuba.' The foregoing discussion of the ILA's protest boycott campaigns demonstrates that private parties have been hesitant to challenge union activities in court. Prior to the numerous legal challenges asserted against the Russian trade boycott, the Ocean Shiping opinion constituted the sole pronouncement regarding the NLRA's application to protest boycotts. Perhaps the reluctance to seek legal remedies against protest boycotts might be attributed, at least in part, to a variety of practical and political considerations. Supplementing these considerations, however, may well have been the impediment to legal relief created by the decision of the Ocean Sho7ping court to clothe protest boycotts with a cloak of immunity from the NLRA. In December of 1979, armed forces of the Soviet Union invaded Afghanistan.65 In response, President Carter decided to halt or reduce exports of grain and high technology to the U.S.S.R. 66 Pursuant to the authority given him by the Export Administration Act of 1979,67 the President issued orders implementing an embargo on grain shipments and high technology exports destined for Russia.68 Imports were not 65 Three Soviet divisions, the vanguard of an eventual occupying force of 85,000 troops, pushed across the Russian-Afghanistan border on December 22, 1979. N.Y. Times, Dec. 22, 1979, at 1, col 5. Their initial mission purportedly was to save the Russian-installed government of Babruck Karmal from a rebellion by bands of Moslem tribal guerrillas. One year later, the Soviet military had all but abandoned hopes for a quick victory. U.S. NEws & WORLD REP., Dec. 22, 1980, at 26. See also Rubinstein, Soviet Imperialismin Afghanistan, 79 CURRENT HIST. 80 (Oct. 1980). 66 For the text of President Carter's statement announcing trade actions against the U.S.S.R., see 16 WEEKLY CoiP. OF PREs. Doc. 25 (Jan. 11, 1980). In addition to halting exports, the President took other measures to condemn the Soviet invasion, -including recalling the United States ambassador from Moscow to Washington, asking the Senate to defer further consideration of the SALT II Treaty, and delaying construction of any American or Soviet Consular facilities. Id at 26-27. 67 Pub. L. No. 96-72, 93 Stat. 503 (1979) (codified at 50 U.S.C. app. §§ 2401-2420 (Supp. III 1979)). Under the 1979 Amendments to the Act, the President has authority to suspend shipments of goods for national security reasons or foreign policy considerations. Id at §§ 2404-2405. For a discussion of the imposition of governmental restrictions on private commercial exports for the purpose of furthering particular goals of United States foreign policy, see Abbott, Linking Tradeto PoliticalGoals: Foreign Policy Export Controls in the 1970s and1980s, 65 MIN. L. REv. 739 (1981). 68 On January 7, 1980, Commerce Secretary Klutnick announced that validated export licenses were required to export all U.S. agricultural commodities and products to the Soviet Union. 45 Fed. Reg. 1883 (1980). Prior to this action, agricultural commodities could be exported to the U.S.S.R. through the use of general licenses. See [1980] 290 INT'L TRADE REP. U.S. ExPORT WEEKLY (BNA) at A-6. Two days later, President Carter directed that all existing licenses for high technology and strategic exports to the Soviet Union be suspended and that all shipments be frozen pending completion of the ongoing review of technology exports to Russia. 45 Fed. Reg. 3027 (1980). The suspension order affected approximately 500 validated export licenses involving high technology goods worth over $155 million. [1980] 290 Ib1lL TRADE REP. U.S. ExPORT WEEKLY (BNA) at A-I. As foreign policy export controls automatically expire one year after imposition unless the President extends them, 50 U.S.C. app. § 2413(b) (Supp. HI 1979), President Carter extended the controls on exports bound for Russia on January 7, 1981. 46 Fed. affected. However, the President chose to exclude from the embargo the outstanding amount of unshipped grain committed under a 1975 agreement between the two nations regulating the purchase and sale of grain for supply to the Soviet Union.6 9 Shortly thereafter, on January 9, Thomas Gleason, the president of the ILA, instructed the union membership to boycott U.S. shipments destined for Russia and to deny services to Soviet-flag ships entering American ports.7 0 Gleason asserted that the directive came "in response to overwhelming demands by rank and file members of the union" reacting to the Soviet threat to world peace.7 1 In addition, the executive committee of the ILA adopted a resolution prohibiting locals from handling any cargo bound to or coming from the Soviet Union.72 Reg. 1665 (1981). For a discussion of the changes in export controls instituted during the Russian trade embargo, see Abbott, supra note 67, at 874-75 n.803. 69 Under the terms of the 1975 grain deal, the United States agreed to allow sales of six million metric tons of wheat and corn to the Soviets. Agreement Between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics on the Supply of Grain, Oct. 20, 1975, [1975] 26 U.S.T. 2971, T.I.A.S. No. 8206. Although the agreement permitted Russia to increase its purchases by up to two million metric tons above the six million ton sale limit in any twelve month period without consultation, id at 2973, the Soviets had only augmented the agreement's sale limit to 8 million metric tons at the time of President Carter's suspension order on January 7, 1980. See [1980] 289 INT'L TRADE REp. U.S. EXPORT WEEKLY (BNA) at A-1, 2. The suspension of general export licenses essentially forbid the export of 17 million metric tons of grain ordered by the Soviet Union in excess of 8 million metric tons committed under the earlier agreement. Id at A-2. As of December 1980, approximately 5.6 million metric tons of grain covered by the agreement had been shipped to Soviet destinations. Id at A-3. Although the President decided to honor the committment levels, the suspension order also required that validated export licenses would be required for the 3.5 million metric tons remaining to be shipped under the agreement. 45 Fed. Reg. 1883 (1980). 70 The directive issued by the union hierarchy stated as follows: In response to overwhelming demands by the rank and file members ofthe Union, the leadership of ILA today ordered immediate suspension in handling all Russian ships and all Russian cargoes in ports from Maine to Texas and Puerto Rico where ILA workers are employed. This order is effective across the board on all vessels and all cargoes. Grain and other foods as well as high valued general freight. [sic] However, any Russian ship now in process of loading or discharging at a waterfront will be worked until completion. The reason for this action should be apparent in light of international events that have affected relations between the U.S. & Soviet Union. However, the decision by the Union leadership was made necessary by the demands of the workers. It is their will to refuse to work Russian vessels and Russian cargoes under present conditions of the world. People are upset and they refuse to continue the business as usual policy as long as the Russians insist on being international bully boys. It is a decision in which the Union leadership concurs. Press Release of Int'l Longshoremen's Ass'n (Jan. 9, 1980), reprintedin Walsh v. International Longshoremen's Ass'n, 480 F. Supp. 524, 526 n.1 (D. Mass. 1980). 71 N.Y. Times, Jan. 10, 1980, at 1, col 5. 72 Wall St. J., Jan. 10, 1980, at 2, coL 2. In contrast to the boycott of Iranian goods and ships, see note 39 supra, the ILA failed to gain support for the Russian trade boycott from its West Coast sister, the 90,000 member International Longshoremen and Warehousemen's Union. Id The As a consequence, ILA locals in Great Lakes, Atlantic and Gulf Coast ports refused to refer their members through hiring hall arrangements for work involving Russian ships or cargoes.73 In comparison to the export controls implemented by the Carter administration, the ILA directive was considerably broader in scope. The ILA directive prevented not only the loading of grain and other cargo licensed for export and exempted from or not covered by the administration's embargo, but also the unloading of any cargo arriving from Russia.74 Gleason proclaimed that the ILA boycott expressed the ILA reported, however, that a West German longshoremen's union had agreed to follow the Gleason directive and refuse to handle Russian cargo in West German ports. Id, Jan. 11, 1980, at 7, coL 1. Additionally, Canadian dockworkers, all pilots working the Suez and Panama canals, and Australian longshoremen expressed support for the ILA boycott, but nonetheless declined to join in the refusal to handle Soviet cargo. [1980] 290 INT'L TRADE REP. U.S. ExPORT WEEKLY (BNA) at A-7. 73 Under a hiring hall agreement, an employer promises to hire only those persons referred to it by the union, and the union agrees to refer applicants on a nondiscriminatory basis, i.e., without regard to their membership or non-membership in the union. A labor contract providing for a non-discriminatory hiring hall is legal, absent the actual practice of discrimination under the agreement. International Brhd. of Teamsters v. NLRB, 365 U.S. 667, 674 (1961). Thus, hiring halls serve as a means "to eliminate wasteful, time-consuming, and repetitive scouting for jobs by individual workmen and haphazard uneconomical searches by employers." Mountain Pacific Chapter, 119 NLRB 883, 896 n.8 (1958), enforcement deniedon other grounds, 270 F.2d 425 (9th Cir. 1959). The hiring hall arrangement is utilized most frequently in the maritime and construction industries. See MoRRis, supra note 7, at 712. 74 Some members of Congress also advocated an embargo on Russian trade. On January 22, 1980, Senator Weiker (R.-Conn.) introduced legislation calling for the imposition of a total trade embargo against the Soviet Union pending its withdrawal from Afghanistan. S. 2200, 96th Cong., 2d Sess., 126 CONG. Rc. S37 (daily ed. Jan. 22, 1980); S. Con. Res. 64, 96th Cong., 2d Sess., 126 CONG. REc. S38 (daily ed. Jan. 22, 1980). Subsequent measures sought to restrict AmericanRussian trade in specific commodities. S. Con. Res. 76, 96th Cong., 2d, Sess., 126 CONG. Rnc. S1453 (daily ed. Feb. 18, 1980) (to prohibit export of fertilizers to the Soviet Union); S. Rns. 373, 96th Cong., 2d Sess., 126 CONG. REc. S1778 (daily ed. Feb. 26, 1980) (to impose an embargo on export sales to U.S.S.R.); S. Con. Res. 15, 97th Cong., 1st Sess., 127 CONG. Ruc. S2410 (daily ed. Mar. 19, 1981) (sense of Senate that Soviet grain embargo be expanded to include all other export commodities); H. Res. 563, 96th Cong., 2d Sess., 126 CONG. REc. H606 (daily ed. Feb. 5, 1980) (to prohibit the export of phosphate fertilizer to Russia); H. Con. Res. 262, 96th Cong., 2d Sess., 126 CONG. REc. H295 (daily ed. Jan. 28, 1980) (to block sale and export of fertilizers to Soviet Union); H. Res. 30, 97th Cong., Ist Sess., 127 CONG. REc. H133 (daily ed. Jan. 20, 1981) (urging newly inaugurated Reagan administration to continue grain embargo imposed by President Carter). Meanwhile, a bill that would deny Soviet vessels access to U.S. ports until the U.S.S.R. withdraws its military forces from Afghanistan was introduced February 5, 1980 by Representative Shumway (R.-Cal.). H.R. 6424, 96th Cong., 2d Sess., 126 CONG. REc. H534 (daily ed. Feb. 5, 1980). In bringing the bill to the House floor, Shumway asserted that "the east and gulf coast longshoremen had the right idea, [for] if we are serious about responding to Soviet actions, we should go farther than just limiting exports." Id Moreover, a House resolution introduced January 30, 1980 by Representative Murphy (D.-N.Y.), Chairman of the House Merchant Marine Committee, and 37 co-sponsors, called for an immediate suspension of U.S. maritime agreements with the Soviet Union after 90 days notice. H.R. Con. Res. 269, 96th Cong., 2d Sess., 126 CONG. REc. H427 (daily ed. Jan. 30, 1980). The Murphy resolution sought to bar Soviet-flag ships from the Grain Elevator Workers cases as the union's secondary picketing focused exclusively on domestic employers. This distinction provides an explanation for the Court's assertion that the holding in Mobile Steamshp "cast[s] no doubt on" the GrainElevator Workers cases.23 5 In the protest boycott situation, the application of section 8(b)(4) to a union's secondary pressure against domestic businesses is directly analogous to the reasoning of the GrainElevator Workers cases. First, international comity concerns are not implicated, for NLRB jurisdiction would portend no interference in the management or affairs of any foreign country. Moreover, no conflict between the policies of the United States and a foreign government can result from halting a secondary boycott, directed against American employers and involving employees working in domestic industries. In short, the effect of Board cognizance over protest boycotts would not produce the sort of international reverberations which would warrant a limitation upon the jurisdictional reach of the NLRA. Likewise, the logic of the Mobile Steamshp decision does not contradict the protest boycott theory. In Mobile Steamshp, the Court rejected a bifurcated view of union activity for jurisdictional purposes: "[s]ince Windward Shpping held that . . . the picketing [of foreign shipowners] was not in or affecting commerce, it would be inconsistent to now hold, insofar as concerns Board jurisdiction over a complaint by [domestic employers,] that the employer of the longshoremen. . . was in or affecting commerce." 6 The rejection of a bifurcated view of the union's actions resulted from the fact that both the primary and the secondary effects of the same picketing interfered with foreign maritime operations. For this reason, both the First Circuit in AlliedInternational and the Board in InternationalLongshoremen's Association, Local 799 reasoned that the Supreme Court's decision in Mobile Steamship did not foreclose NLRB jurisdiction over the Russian trade boycott. In AlliedInternational,the First Circuit read Mobile Steamship as establishing that in a case of interrelated labor disputes, particularly disputes that give rise to similar conduct carried on at a single site, "a primary dispute cannot be extricated from a secondary dispute for purposes of contrary jurisdictional findings." 27 As jurisdiction over the ILA's secondary pressure of domestic employers did not involve separation of the primary and secondary effects of single union action, the 235 Id. at 215 n.10. 236 Id. at 214. 237 640 F.2d at 1374. 3:211(1981) First Circuit viewed the Russian trade boycott as analogous to the picketing in the Grain Elevator Workers cases. Similarly, the Board concluded in InternationalLongshoremen'sAssociation, Local 799 that the union's conduct was purely secondary and domestic, and thus distinguishable from Mobile Steamship. Thus, the NLRB limited Mobile Steamship to the proposition that "where primary activity interferes with foreign maritime relations and inextricably involves the secondary employers, the Board is prohibited from asserting jurisdiction over the primary conduct or its secondary effects. . .. [; for this reason,] there is bar to our assertion of jurisdiction [over the Russian trade boy238 cott]." The reading given Mobile Steamshop by both the First Circuit and the Board is in harmony with the underlying purposes of the Act. 3 9 Jurisdiction over protest boycotts would not entail bifurcation of the effects of single union action which the Supreme Court disapproved in Mobile Steamshi#. The only labor dispute extant is a secondary boycott involving the ILA and American employers. Moreover, the fact that the boycott was inspired by military events in a foreign country does not counsel against the application of section 8(b)(4) to a domestic labor dispute. In short, none of the considerations that prompted a limit upon the NLRB's jurisdiction in WindwardShiping,Incres and Benz are present in the context of a protest boycott. Thus, the assertion of jurisdiction over protest boycotts is consistent with the Grain Elevator Workers cases, and reconcilable with the result reached in Mobile Steamshi . 238 257 N.L.R.B. No. 151, 108 L.R.R.M. at 1039. 239 In contrast to the reasoning of the First Circuit and the NLRB, the Fifth Circuit's decision in Baldovin construed the MindwardShipping-MobileSteamship test in very broad terms. See text accompanying notes 143-52 supra. A comparison of the analyses of Baldovin and the Allied Internationaldecisions in the context of non-maritime protest boycotts, however, yields the conclusion that the reasoning of the First Circuit and the Board is consonant with the underlying purposes of § 8(b)(4). For example, mine workers strike against an American steel company (which imports South African steel) located in Alabama for the purpose of protesting the apartheid policy of the Republic of South Africa. The First Circuit and the Board would allow NLRB jurisdiction over the secondary aspects of the strike against the American firm, as the concerns of Windward Shipping andMobile Steamshop are not implicated by enjoining a domestic strike. Although the Fifth Circuit had earlier intimated that an employer suffering from a similar protest boycott could obtain a remedy through § 8(b)(4), United States Steel Corp. v. United Mine Workers, 519 F.2d 1236, 1247 n.23 (5th Cir. 1975), cert.denied, 428 U.S. 910 (1976), the Baldavin court asserted that the NLRB would not possess jurisdiction over such a strike. See Baldovin v. International Longshoremen's Ass'n, 626 F.2d 445, 454 n.6 (5th Cir. 1980). In light of the Fifth Circuit's assertion that "the object of a dispute determines whether or not it is 'in commerce,"'" id at 453, it is difficult to conceive of any protest boycott (maritime or non-maritime) to which the NLRA would apply under the Baldovin rationale. Elements Required to Prove a Section 8(b)(4) Violation Section 8(b)(4) has been called one of the most labyrinthine provisions ever included in a federal statute,240 for a literal reading of the section does not provide ready answers to the many problems of interpretation that have arisen in examining secondary boycotts. The meaning of the statutory language is neither obvious nor intuitive. Indeed, the Supreme Court has acknowledged that a literal construction of the provision would ban most strikes historically considered to be lawful primary activity.241 Furthermore, though section 8(b)(4) does not explicitly mention "primary" or "secondary" boycotts, strikes or disputes, the legislative history of the Act refers to the section as the "secondary boycott" provision.' Congress directed the impact of the section toward "what is known as the secondary boycott whose 'sanction[s] bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it.' "243 Though the distinction between legitimate "primary activity" and banned "secondary activity" is crucial, section 8(b)(4) fails to present a bright line marking out a frontier between the two concepts. Thus, in an effort to yield an integrated set of standards by which union activities may be measured against the statute, the Board and the courts have utilized a means-object test to determine the legality of union conduct. Both an illegal means--threatening, coercing or restraining the secondary employer-and an illegal object-forcing the secondary employer to cease doing business with the primary employer-must be estabfished to prove a violation. 2' It is against this general test that protest boycotts must be measured. 1. Threatening, Coercingor Restrainingthe Secondary Employer Subsection (ii) of section 8(b)(4) makes it unlawful for a union "to 240 Aaron, The Labor Management ReportingandDisclosure Act of 1959, 73 HARV. L. REv. 1086, 1113 (1960). The Supreme Court has observed that "[nlo cosmic principles announce the existence of secondary conduct, condemn it as an evil or delimit its boundaries"' Brotherhood of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 386 (1969). This difficulty is further compounded by language wanting in clarity and a confusing legislative history, both of which are the "product of compromise of the closely divided Congress that enacted the words into law." BARTOSiC & HARTLEY, supra note 20, at 124. 241 See Local 1976, United Bhd. of Carpenters v. NLRB, 357 U.S. 93, 98 (1956). 242 See NLRB v. Denver Bldg. & Constr. Trades Council, 341 U.S. 675, 681 (1951). 243 Local 761, Int'lUnion of Elec., Radio & Mach. Workers v. NLRB, 366 U.S. 667, 672 (1961), quoting International Bhd. of Elec. Workers v. NLRB, 181 F.2d 34, 37 (1955) (Hand, L., J.). 244 See Local 1976, United Bhd. of Carpenters v. NLRB, 357 U.S. 93, 98 (1956); Teamsters, Local 812 v. NLRB, 105 L.R.R.M. 2664, 2668 (D.C. Cir. 1980). Northwestern Journal of International Law & Business 3:211(1981) threaten, coerce or restrain any person" for proscribed objects. 245 Whether a union pursues its object by threatening, coercing or restraining a neutral business goes not to the motive underlying the boycott, but to the natural and foreseeable consequences of the pressure which the union has brought to bear upon the neutral. In the protest boycott situation, this conduct takes the form of union pressure designed to impede the operation of domestic businesses. In the context of the Russian trade boycott, one can argue that the ILA's manipulative use of its hiring hall arrangement with stevedoring companies is a form of coercion undertaken against neutral parties for the purpose of forcing them to cease doing business with the Soviet Union. Since the ILA has no dispute with stevedoring firms, the action of the union in refusing to refer longshoremen to these neutral parties involves them in a dispute not of their own. The union's action in furtherance of its disagreement with Soviet foreign policy is therefore precisely the type of direct economic pressure upon neutral persons which the Congress intended to prohibit with the secondary boycott provisions. A union's manipulative abuse of its hiring hall arrangement with a neutral employer was clearly contemplated by Congress in the 1959 Amendments to section 8(b)(4) to be a form of coercion. As Congressman Rhodes declared, refusal to refer was one of the loopholes in the secondary boycott provisions which the 1959 Amendments were intended to remedy: . . . a union with a hiring hall system... may also coerce a secondary employer into ceasing to use products of some other company by denying him access to the craftsmen on the hiring hall list. This [Amendment] makes such direct coercion of an employer unlawful by insertion of clause 4(ii) forbidding threats or coercion of 'any person engaged in commerce or an industry affecting commerce.'246 The argument that the ILA's refusal to refer its members to load or unload Russian cargoes pursuant to hiring hall arrangements with stevedoring companies satisfies the "threaten, coerce and restrain" requirement is therefore consistent with the Landrum-Griffin Amendments to section 8(b)(4). In InternationalLongshoremen's Association, Local 799, the Board accepted such a position, and held that the union had violated subsection (ii) of section 8(b)(4) since it had "threatened, coerced, and restrained [domestic employers] with a refusal to refer 245 NLRA § 8(b)(4)(ii), 29 U.S.C. § 158(b)(4)(ii) (1976). 246 105 CoN. lnc. 14,208 (1959), reprintedin II LEO. HIST. LMRDA, at 1581. See also 105 CoNG. REc. 5971 (1959), reprintedin II LEo. HIST. LMRDA, at 1194 (remarks of Sen. McClellan). [ILA] members for unloading cargo emanating from the USSR."24 7 The district court in Walsh, however, rejected the argument that an ILA local's refusal to refer longshoremen to stevedoring companies constituted threats, coercion or restraint. According to Judge Skinner, a bare refusal to refer does not contravene section 8(b)(4), for "union members have simply declined to accept employment on certain ships, as a form of political protest."2 48 For support, the court referred to the reasoning of the Ocean Shiping decision. In this case, the Fourth Circuit held that should a mere refusal to refer, unaccompanied by any other acts, be deemed illegal, "the union would be deprived of its rights of expression and. . . section 8(b)(4)(B) would be emptied of mean249 ing. The Ocean Shipping court believed that the refusal to refer longshoremen to work one ship which had engaged in Cuban trade "is not itself coercive."25 0 The opinion intimated that a refusal to refer would not amount to coercion until the union instituted a general work stoppage against the neutral.2 51 However, this reasoning conflicts with other circuits which have adopted the approach that a refusal to refer which substantially hinders the neutral's business with the primary constitutes "restraint or coercion." 252 A union restrains the neutral employer whenever the deliberate actions of the former hinder the latter in doing business with the primary employer. In Walsh, the ILA's refusal to refer its members to a stevedoring company to unload Russian cargoes caused substantial dislocation of business between it and Allied, the importer of the Soviet goods. Since eighty-five percent of Allied's imports originated in the U.S.S.R., and accounted for $25 million in annual revenues, the ILA's 247 257 N.L.R.B. No. 151, 108 L.R.R.M. at 1042. A violation of the secondary boycott provisions may also be premised upon subsection (i) of § 8(b)(4). Under this provision, a union engages in illegal action when it "induce[s] or.encourage[s] any individual employed by any person" to strike, boycott, or refuse to handle any goods for proscribed objects. In the context of the Russian trade boycott, the Board determined that the ILA had "induced and encouraged their members to engage in refusals in the course of the employment by [the stevedore firm] to process or otherwise handle Soviet cargoes owned by [the importer]...." Id. 248 488 F. Supp. at 531. 249 NLRB v. Local 1355, Int'l Longshoremen's Ass'n (Ocean Shipping), 332 F.2d 992, 997 (4th Cir. 1964). 250 Id. at 998. 251 Id at 997. 252 NLRB v. Local Union No. 3, Int'l Bhd. of Elec. Workers, 477 F.2d 260, 266 (2d Cir. 1973); Local No. 5, United Ass'n of Journeymen Plumbers v. NLRB, 321 F.2d 366, 368 (D.C. Cir.), cert. denied,375 U.S. 921 (1963); NLRB v. Local 825, Int'l Union of Operating Engineers, 315 F.2d 695, 697-98 (3d Cir. 1963); NLRB v. Highway Truckdrivers & Helpers, Local No. 107, 300 F.2d 317, 320-21 (3d Cir. 1962). Northwestern Journal of International Law & Business 3:211(1981) boycott restrained and coerced Allied although the union's activity stopped short of a general work stoppage.253 For this reason, the Fourth Circuit's view of what constitutes threats, coercion or restraint is excessively narrow. In light of the purpose of the 1959 Amendment's inclusion of clause (ii) into section 8(b)(4), any refusal to refer which tends to exert pressure on the neutral should be considered sufficient to constitute restraint or coercion.25 4 Perhaps one explanation of the OceanShipping court's (and subsequently the Walsh court's) disinclination to characterize the ILA's refusal to refer as coercive results from the Fourth Circuit's reliance on the Supreme Court's decision in NLRB v. Fruit & Vegetable Packers (Tree Fruits).255 The Fourth Circuit analogized the refusal to refer for work upon one vessel to the narrow consumer appeal being made in Tree Fruits which the Supreme Court has concluded to be legal under section 8(b)(4). The Tree Fruits Court held that a union could picket the retail outlet of a struck product if it confined its appeal to urging customers not to purchase the product. 5 6 The Court interpreted the section to allow the union activity in the absence of a contrary congressional intent, so as to avoid first amendment questions inherent in the prohibition of union picketing.257 Yet, in Ocean Shipping, as in the context of the Russian trade boycott, this problem is absent, for the ILA made no appeal to the public concerning the Soviet Union. For this reason, section 8(b)(4) would not be emptied of meaning by enjoining a protest boycott. First, the proviso to the secondary boycott provisions protects legitimate primary activities, something which is very different from union conduct undertaken against neutral parties. Second, a prohibition against the union's work stoppage would not deprive the ILA or its members of their right of expression. Alternative forms of expression exist, including the right to assemble or leaflet in protest of Soviet aggression, the opportunity to picket the Russian em253 257 N.L.R.B. No. 151, 108 L.R.R.M. at 1041. The union's conduct also caused substantial dislocation of business relationships between the shipper and the stevedore. Upon learning of the ILA boycott, the shipper, Waterman Steamship Lines, repudiated its future agreement to carry wood products from Leningrad to Boston aboard the vessel Jefferson for the importer Allied. 488 F.Supp. at 526. Additionally, Waterman restricted the cargo being loaded on the ship Middleton in Leningrad to one-third its scheduled size, cancelled its scheduled delivery to several U.S. ports, and unloaded the wood products in Montreal. Id Thus, as stevedores could not be obtained through any other sources, the refusal to refer ILA members exerted pressure on Waterman to refrain from servicing Allied. 254 See note 246 supra, See also II LEo. HIST. LMRA, at 989, 1079, 1523, 1568, and 1581. 255 332 F.2d at 994, citing 377 U.S. 58 (1964). 256 377 U.S. at 63. 257 Id bassy and consular offices, and the right to petition and lobby elected officas to effectuate a reassessment of United States foreign policy regarding American-Russian trade.5 8 The Allied Internationalcourt rejected the view that protest boycotts are exempted from section 8(b)(4) as a form of political expression.25 9 As the First Circuit reasoned, "prohibiting the [union's boycott] . . .would [not] rob either the ILA or its members of their 'right of expression' .... [since its] resort to coercive tactics. . . exceed[s] the bounds of 'political expression' in its pure form." 260 The NLRB dismissed the union's first amendment arguments in shorter form, holding that the application of "section 8(b)(4) to such conduct imposes no impermissible restrictions on constitutionally protected speech."26' Despite the political nature of protest boycotts, a fact which lead the Ocean Shipping and Walsh courts to afford such conduct first amendment protection, section 8(b)(4)'s regulation of a partial refusal to refer should not be subjected to a narrow reading under the rationale of Tree Fruits. Rather, a partial refusal to refer union workers should 258 For a discussion of the American labor movement's endeavors to influence United States foreign policy "through democratic processes," see notes 21-24 and accompanying text supra. Interestingly, the administrative law judge conducting factual findings in the consolidated unfair labor practice proceedings against the ILA found that "[t]here is little support.. . for the claim that [union president] Gleason's directive merely expressed the overwhelming desire of the membership ....,for there is no] testimony about a flood of sentiment pouring in on him from ILA members throughout the nation .... " International Longshoremen's Ass'n, Local 799 (Allied Int'lI,nc.), Case No. 1-CC-1753, slip op. at 3 (Mar. 16, 1981). In addition, one court noted that the ILA directive implementing the Russian trade boycott may have forced union members to express themselves contrary to the views of some: rT]he Union's position that its action constitute [sic] only the joint expression of its members' opinion.., is neither factually nor legally supportable. No evidence of a mandate from the Union's membership has been presented, nor did the Union make any effort to notify its members of employees that Union members who wished to work or who did not support this action could ignore the Union's order without fear of retaliation. Hampton Roads Shipping Ass'n v. International Longshoremen's Ass'n, Locals 1248 & 1963, Civ. No. 80-186-N, slip op. at 10 (E.D. Va. Feb. 22, 1980), rey'don othergrounds, 631 F.2d 282 (4th Cir. 1980). 259 640 F.2d at 1378-79. The conclusion of the First Circuit accords with well established case law. There is no reason § 8(b)(4)(B) should be deemed inapplicable because the ILA's activities are politically motivated. As early as 1949 the Supreme Court rejected the argument that regulation of picketing and other concerted activity violated either the first or the thirteenth amendments. United Autoworkers, Local 232 v. Wisconsin Employee Relations Bd. (Briggs & Stratton), 336 U.S. 245, 251 (1949). Two years later the Court upheld the constitutionality of the secondary boycott provisions, International Bhd. of Elec. Workers v. NLRB, 341 U.S. 694, 705 (1951), and determined that § 8(b)(4)'s regulation of union activity is not violative of the first amendment. NLRB v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 689 (1951). 260 640 F.2d at 1378-79. 261 251 N.L.R.B. No. 151, 108 L.R.R.M. at 1041 n.38. be deemed sufficient to maintain an action under the statute if the union has an object of forcing a neutral to cease doing business with persons trading with the target of the union's action, the U.S.S.R. 2. The Forbidden Object-To Forcethe Cessation of Business The second element of a violation of section 8(b)(4) necessitates a finding that the challenged union conduct have as a goal the forcing or requiring of a neutral employer to cease doing business with another person. Absent an impermissible object, the union's conduct is protected primary activity. The ILA's posture throughout the Russian trade boycott was to characterize its activity as a passive, political protest against the militaristic designs of the Soviet government. 262 For this reason, the union maintained that any cessation in business dealings between the U.S.S.R. and American companies was not an object of its work stoppage, but rather, the unintended effects attendant their protest against Soviet military policy. As the union contended in argument before the Fifth Circuit in Baldovin: Longshoremen have elected to bear the economic consequences in the form oflost wages rather than participate in an abhorrent venture. This is the express and demonstrable object of the ILA's action.... Their quarrel is solely with the Soviets over that nation's2p3olitical policy, and their response is conscientious, personal abstention. Thus, while the ILA's conduct obviously had affected the business of neutral employers, the union contended its boycott was lawful absent a proscribed object. The protest boycott theory, however, would posit that the foreseeable and inevitable consequence of the union's conduct is the cessation of business between American companies and the foreign government under the union's interdiction. Hence, whatever the ILA's ultimate object, at least one goal of the union's conduct was to force domestic companies to cease doing business with the Soviet Union. Even accepting the ILA's characterization of its boycott, the union's goal was furthered by causing stevedores and shippers to cease handling Russian goods. The resulting cutback in trade with the U.S.S.R. served to direct its protest, if only symbolically or through economic force, to the Soviet government. Despite the fact that a protest boycott may have several motives, 262 Brief of ILA at 14, 16, 26, 28, 31-32, 34, 39, Baldovin v. International Longshoremen's Ass'n, 626 F.2d 445 (5th Cir. 1980). See also Reply Brief of ILA at 10, 15, 16, id 263 Brief of ILA at 15, id the secondary boycott provisions do not require that the sole object of the activity be one prescribed by the statute. Such an interpretation of secondary boycott provisions finds solid support in the legislative history of the Act. 2" As the Supreme Court has repeatedly observed, section 8(b)(4) dictates only that "an object" of the boycott be one which contravenes the statute, and conduct that has such an intermediate object, if prohibited, is not protected merely because the ultimate object is beyond the proscription of the Act.265 In cases involving mixed motives, the Board and the courts look to the totality of the union's conduct in determining whether the motive claimed by the Union is pretextual, and whether an object of the conduct complained of is proscribed by section 8(b)(4).2 6 6 As the Supreme Court asserted in NLRB v. Ppi#70ttingLocalNo. 638, "this issue turns on whether the boycott was addressed to the labor relations of the contracting employer vis-a-vis his own employees, and is therefore primary conduct, or whether the boycott was tactically calculated to satisfy union objectives elsewhere," in which event the boycott would be prohibited secondary activity.2 67 In Allied International,the First Circuit followed this test and determined that the Russian trade boycott was "calculated to satisfy union objectives elsewhere. '2 68 Since the ILA had no dispute with neutral employers, the targets of the boycott, the conclusion of the First Circuit is correct. As the court reasoned, "[w]hen a union orders all employees of a neutral employer to cease handling goods originating from a particular source, it is afortiori forcing that employer to 'cease doing business' with that source." 269 For this reason, the court observed that the object of a protest boycott "can be inferred from the inevitable results generated by it."270 Since it is logical to conclude that the ILA intended the foreseeable consequences of its refusal to handle Russian cargoes, the union, in coercing neutrals to cease doing business with the U.S.S.R., utilized 264 The sponsor of the statute, Senator Taft, stated in his supplementary analysis of the secondary boycott provision: "[s]ection 8(b)(4), relating to illegal strikes and boycotts, was amended in conference by striking out the words 'for the purpose of and inserting the clause 'where an object thereof is.'" 93 CONG. REc. 6662 (1947), reprintedin II LEG. HIST. LMRA, at 1579. 265 NLRB v. Local 825, Operating Engineers (Burns & Roe), 400 U.S. 297, 302-03 (1971); Carpenters Local 74 v. NLRB, 341 U.S. 707, 713 (1951); NLRB v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 689 (1951). 266 See NLRB v. Pipefitting Local No. 638, 429 U.S. 507, 511 (1976); NLRB v. Plumbers Local 307, 469 F.2d 403,408 (7th Cir. 1972); IBEW Local 480 v. NLRB, 413 F.2d 1085, 1091 (D.C. Cir. 1969); Teamsters, Local 812 (Monarch Long Beach Corp.), 243 N.L.R.B. 801, 804-06 (1979). 267 429 U.S. at 511. 268 640 F.2d at 1377. 269 Id at 1375 (emphasis in original). 270 Id Northwestern Journal of International Law & Business the resulting cessation of business as a means of expressing its disapproval over the Afghanistan invasion. In essence, the union's intent is evidenced by the very nature of its conduct. Thus, since the cessation of business is tactically used for its effect upon the Soviet Union, an impermissible object necessary to prove a violation of section 8(b)(4) is present.2 7 Although the Board agreed that the ILA's boycott of Russian cargoes stemmed from an unlawful object, the NLRB reached this conclusion with a different analysis. The Board assessed the object of the Russian trade boycott with reference to the Supreme Court's decision in NLRB v. Retail Store Employees Union, Local 101 (Safeco).272 In Retail StoreEmployees, the Court examined a section 8(b)(4) challenge to union picketing undertaken against neutral title insurance companies who derived over ninety percent of their incomes from their business with Safeco, the primary employer of the union's membership. In determining whether the union's object was one proscribed by Section 8(b)(4), the Court focused exclusively on the nature of the foreseeable injury to the neutral parties. Accordingly, the Court determined that picketing that "reasonably can be expected to threaten neutral parties with ruin or substantial loss" violates section 8(b)(4) as its purpose is to force the neutral employers to cease doing business with the primary 273 employer. In the context of the Russian trade boycott, the NLRB was of the opinion that the object of the ILA's conduct could likewise be gleaned through the test promulgated in Retail Store Employees. First, the Board determined that the boycott of Russian cargoes could be ex271 The union conduct condemned by the Eightieth Congress was characterized as "a strike against employer A for the purpose of forcing that employer to cease doing business with employer B [the employer with whom the union has a dispute]. ... S. REP. No. 105, 80th Cong., 1st Sess. 22 (1947), reprintedin I LEG. HIsT. LMRA, at 428. Yet, when the union engages in a protest boycott, the calculus of secondary pressure is reformulated: the union pressures neutral companies trading with the U.S.S.R. for the purpose of forcing Russia to alter its conduct (i.e., to withdraw from Afghanistan) by causing it to lose the business of American companies. The pressure against neutral stevedoring firms is secondary because the resulting cessation of business between the entities trading with Soviets (the neutral shipping and import/export companies) and the U.S.S.R. is utilized as a weapon against the foreign government. Furthermore, even if the union's activities only achieve a partial cessation in business relations between American companies and a foreign government, the cease doing business object is nonetheless satisfied. See NLRB v. Local 825, Int'l Union Operating Engineers, 400 U.S. 297, 304-05 (1971) (secondary boycott provision is read too narrowly if complete termination of business relationship between neutral and primary is required); NLRB v. Local 830, Int'l Bhd. of Teamsters, 281 F.2d 319, 321 (3d Cir. 1960) (eight instances of refusals to handle goods out of thousands is sufficient). 272 447 U.S. 607 (1980). 273 Id at 614-15. pected to inevitably threaten neutral employers with substantial economic loss. Such a conclusion was evidenced by the fact that approximately eighty-five percent of Allied's products were imported from the U.S.S.R.274 Second, regardless of whether the ILA intentionally calculated to cause a total cessation in the flow of goods between the U.S. and the Soviet Union, the union was responsible for the foreseeable consequences of its conduct. To support this finding, the Board reasoned that: [The ILA] had every reason to foresee with absolute clarity. . . that Russian goods would not be moved by any employees in any of the ports encompassed by the boycott... and that Allied would be forced to cease purchasing Russian wood for delivery to ports affected by the boycott .... [Thus,] under the rationale of Safeco, [the union] must be held accountable for the foreseeable consequences of [its] conduct . . . and must be held to have induced the boycott with an object of forcing the business entities involved to cease business operations among themselves and to cease handling goods of the U.S.S.R.275 Since the boycott presented neutral employers such as Allied with the choice between economic survival and the severance of their business relationships with the Soviet Union, the ILA's conduct contravened section 8(b)(4)(ii). A comparison of the analyses utilized by the First Circuit and the NLRB reveals that the former accords with the premise of the protest boycott theory. The pressure directed against neutral companies trading with the Soviet Union is unlawful, as the purpose of the boycott is to force American employers to cease doing business with the Soviet Union. In the words of the First Circuit, "when a union orders all employees of a neutral employer to cease handling goods originating from a particular source, it is afortioriforcing the employer to cease doing business with that source."276 In contrast, the reasoning of the Board implies that a protest boycott stems from an unlawful object only in situations where the foreseeable consequences of the union's pressure "inevitably. . . threatens [a neutral employer] with substantial economic loss. ''277 Whereas the protest boycott theory and the rationale of the First Circuit would deem the object of the ILA's boycott against neutral employers dealing with the Soviet Union to be illegal, the approach of the Board is narrower as it envisions that the object of 274 257 N.L.R.B. No. 151, 108 L.R.R.M. at 1041. These imports amounted to approximately $25 million annually. Id 275 Id at 1042. 276 640 F.2d at 1375 (emphasis in original). 277 See text accompanying notes 272-75 supra. Northwestern Journal of International Law & Business union activity is unlawful only if neutral employers are faced with the near total collapse of their business. The nature of protest boycotts belies the validity of the Board's determination that the object of such union activity is unlawful only in situations directly analogous to Retail Store Employees. Since protest boycotts are confined to secondary employers and calculated to satisfy union objectives unrelated to labor-management relations, the union's object is illegal. This view accords with the factual circumstances underlying the Russian trade boycott. First, courts examining the circumstances under which the ILA instituted the Russian trade boycott concluded that the boycott campaign was implemented by the union's hierarchy, rather than, as ILA President Gleason represented it to be, a grass-roots movement amongst the union's rank and file.27 Such evidence suggests that the union's leadership sought to inflict economic harm upon the U.S.S.R. in retaliation for its military adventurism. Moreover, these findings counsel against acceptance of the ILA's claim that the boycott constituted a primary protest since the sole object was to vindicate the consciences of the union's membership by refusing to load Russian cargoes. Secondly, in argument before the Baldovin court, ILA lawyers admitted that the infliction of economic harm upon the Soviet Union was one goal of the protest boycott: [1longshoremen will not supply their labor to contribute, directly or indirectly to the aggressor's cause . . . [as] an incidentalpurposeis to bring pressureto bear on the Soviets to induce their withdrawalfromthe invaded territoryandtheir cessation ofmilitarydesigns .... The present controversy involves a passive form of protest by ILA members against aiding or abetting Soviet aggression ....279 278 See note 258 supra. In addition, Gleason asserted that the boycott will cost the Soviet Union "millions of dollars" and will involve "millions of tons of cargo." Statement of Thomas Gleason (Jan. 16, 1980), reprintedin[1980] 13 DAILY LAB. REP. (BNA) at A-7. Another economic weapon launched against the Soviet Union by the boycott was aimed at eliminating the carriage of goods from the United States to European ports by Russian vessels. In this regard, Gleason stated that U.S. shipping companies would prosper under the boycott because traders using Soviet-flag ships for the shipments were only "looking for the cheapest way to Hamburg, West Germany." Statement of Thomas Gleason (Feb. 7, 1980), reprintedin [1980] 294 INT'L TRADE REP. U.S. EXPORT WEEKLY (BNA) at A-5. 279 Brief of ILA at 16-17, 26 (emphasis added), Baldovin v. International Longshoremen's Ass'n, 626 F.2d 445 (5th Cir. 1980). See also BriefoflLA at 14 ("the ILA's refusal to work is... primary, with no object but to affect the conduct of the longshoremen.., and, perhaps, the foreign policy of the Soviet Union"), 16 ("the overriding object remains the vindication of longshoremen's [sic] own convictions... as [r]ealistically, the ILA does not expect its refusal to exert significant influence on the Politbureau"), 20 ("the sole object of the activity is the conduct of the employees themselves-or at most to affect the military policy of a foreign country . . ."),id.; Reply Brief of ILA at 16 ("the ILA's action is nothing more than to satisfy its' members con The fact that the potential for inducing the U.S.S.R. to withdraw its forces from Afghanistan may be remote does not detract from the theory that an objective of the boycott was to pressure the Soviet Union by stifling it foreign trade with the United States. Thus, in examining the position of a neutral employer in the context of the Russian trade boycott, and asking whether a cessation of his business is being employed by the ILA for its effect elsewhere-in order to give expression, symbolically or in reprisal, of its disapproval of the U.S.S.R.-one can see that a neutral party is entitled to protection from protest boycotts under section 8(b)(4).2 8 ° FEDERAL CONTROL OVER PROTEST BOYCOTTS On April 24, 1981, President Reagan officially removed trade controls on exports of agricultural commodities and phosphates which were imposed against the Soviet Union fifteen months earlier following its invasion of Afghanistan. 281 Immediately thereafter, the ILA announced its support for the President's action and terminated its boycott of Russian cargoes and ships.2 82 While some data suggests that government export controls were largely responsible for the decline in American-Soviet trade during 1980,283 the longshoremen's protest boysciences by not contributing their own services to the Soviet Union with, perhaps, an added hope of influencing the Soviets to behave"), id These statements, and others made by ILA President Gleason, see note 278 supra, indicate that at least one object of the boycott was to utilize the resulting cessation of business for its effect upon the U.S.S.R. Conduct with such an intermediate object, if proscribed, is not protected merely because the "ultimate" object is beyond the proscription of the Act. See notes 264-66 supra. 280 Private parties therefore have several remedies to counter protest boycotts. First, unfair labor practices can be filed with the NLRB alleging a violation of § 8(b)(4). Under § 10(1), the Board will then seek injunctive relief from a federal district court pending adjudication of the alleged unfair labor practice. See, eg., Mack v. International Longshoremen's Ass'n, 104 L.R.R.M. 2892 (S.D. Ga. 1980). Thereafter, cease and desist orders will be issued by the Board upon a finding that the union conduct violates the Act. International Longshoremen's Ass'n, Local 799 (Allied Intl, Inc.), 257 N.L.R.B. No. 151, 108 L.R.R.M. 1033 (Aug. 28, 1981). Enforcement may be secured by an order from an appropriate United States court of appeals. NLRA § 10(c), 29 U.S.C. § 160(c) (1976). Violation of such an order is also punishable by an action for contempt. Id. Finally, § 303 allows a suit for damages caused by violations of § 8(b)(4). LMRA § 303, 29 U.S.C. § 187 (1976); see, eg., Allied Int'l, Inc. v. International Longshoremen's Ass'n, 640 F.2d 1368 (lst Cir. 1981). 281 See 17 WEEKLY CoMp. OF PRES. Doc. 465 (April 24, 1981). See also N.Y. Times, April 25, at 1,coL 5; id, April 26, at 1, coL 6. Several Congressmen, however, have introduced a resolution urging the administration to reimpose an embargo against the U.S.S.R See H. Con. Res. 141, 97th Cong., 1st Sess., 127 CONG. REc. H 2614 (daily ed. June 3, 1981). 282 [1981] 355 INT'L TRADE REP. U.S. EXPORT WEEKLY (BNA) at A-2. 283 In its 25th quarterly report on trade with non-market economies, the International Trade Commission (ITC) attributed the "relatively unimpressive" trade level between the United States and the communist world in 1980 as "primarily the result of the imposition of trade sanctions" on Northwestern Journal of International Law & Business cott undoubtedly impacted upon Russian trade. First, the protest boycott prevented Soviet imports from entering ILA-controlled ports in the Great Lakes and along the Atlantic and Gulf coasts. Since neither the Carter nor Reagan administrations restricted imports from the U.S.S.R., the longshoremens' action significantly contributed to the overall decline in import trade levels between the two countries. 2 84 Secondly, the ILA effectively blocked the export of 3.5 million metric tons of agricultural commodities which President Carter exempted from export controls.28 5 As a result, the government assumed contracts for the agricultural commodities stranded in U.S. ports at considerable cost to the American taxpayer.2 8 6 Finally, the extent to which the ILA's action may have discouraged potential trade cannot be measured. Many businessmen who might have otherwise engaged in trade with the U.S.S.R. may have been deterred by the Russian trade boycott. Likewise, due to the inability of the executive branch to negotiate an end to the ILA's boycott campaign and the disinclination of federal courts to enjoin the longshoremen's action, the spectre of protest boycotts may well inhibit the formation of future Soviet trade relationship by American companies. The significance of the Russian trade boycott, however, transcends the monetary losses experienced by American exporters and importers. Rather, the protest boycott of the ILA represented a direct challenge to the executive branch's management of foreign policy decision-making the Soviet Union. See INTERNATIONAL TRADE COMMISSION, TWENTY-FIFH QuARTERLY REPORT ON TRADE WITH NON-MARKET ECONOMIES (ITC Pub. No. 1136) (Mar. 1981), reprintedin [1981] 74 INT'L TRADE REP. U.S. IMPORT WEEKLY (BNA) at A-13. According to the ITC, the level of trade between the United States and communist countries rose 3% during 1980, compared to trade increases of 53% in 1979 and 52% in 1978. Id In addition, while the Soviet Union had been the United States' leading communist trade partner, accounting for more than 40% of U.S. exports (with 70% of that in agricultural products) and 30%of U.S. imports, trade between the two countries declined by more than 50% in 1980. Id 284 Explicit data regarding the effect of the ILA's boycott on imports is difficult to obtain. Soviet imports gained entrance to Pacific ports throughout the period of the ILA boycott, as West Coast longshoremen refused to join in the Russian trade boycott. See note 72 supra. In addition, the ILA's policy throughout its boycott campaign was to obey court injunctions of their strike against Soviet cargoes and ships. See text accompanying notes 79-80 supra. Thus, in ports where courts enjoined ILA locals, Soviet imports gained admittance to the United States. See notes 8687 and 92 supra. Therefore, the ILA was unsuccessful in achieving a total exclusion of U.S.S.R. imports from American ports. 285 See text accompanying notes 76-78 SUpra. 286 On February 1, 1980, the government reached final agreement with 13 grain exporting companies for the assumption of suspended Soviet contracts of approximately 16 million metric tons of wheat and corn. [1980] 293 INT'L TRADE REP. U.S. EXPORT WEEKLY (BNA) at A-14. Officials from the Department of Agriculture estimated that the contract buy-up program would cost the government $2.5 billion. Id and the frustration of congressional policies fostering American participation in foreign trade. Accordingly, this potential for impairment of presidential and congressional foreign policies raises the question of the means of controlling protest boycotts. Effective authority over foreign affairs and enforcement of international trade programs may require legislation prohibiting labor union interference with foreign commerce. Yet, even if the federal government can constitutionally restrain protest boycotts, one must also ask if the full exercise of such a power is in the national interest. While the former issue is one of constitutional law, the latter focuses upon policy considerations. A. The Scope of Federal Power The Export Administration Act of 1979 (EAA)287 manifests a congressional intent "to encourage trade with all countries with which the United States has diplomatic or trading relations . . ,288 This foreign trade policy is implemented through a system of licenses and export controls, and is based upon the power of Congress "to regulate commerce with foreign nations, and among the several States." 289 The statute also grants power to the President to prohibit or curtail the exportation of goods and technology "to the extent necessary to further ...the foreign policy of the United States or to fulfill its declared international obligations. 29° Protest boycotts, however, discourage American exporting and importing businesses acting in accord with stated government policy. In addition, insofar as labor union protest activities may block exports from leaving American ports, the President's control of exports for foreign policy purposes under the EAA may be subjected to unwarranted private pressure. Likewise, protest boycotts are antithetical to the concept of Congress' absolute power over foreign commerce. Legislative regulation of protest boycott activity might therefore be premised upon the commerce clause. The purpose of such legislation would be to prevent labor interference with goods moving through/foreign commerce. As one scholar has noted: Under the-[foreign commerce clause], Congress has no less authority over foreign commerce than it has over interstate commerce. And since the 287 Pub. L. No. 96-72, §§ 1-21, 93 Stat. 503 (1979) (codified at 50 U.S.C. app. §§ 2401-2420 (Supp. 111 1979)) [hereinafter cited as EAA]. 288 EAA § 3, 50 U.S.C. app. § 2402(1) (Supp. 11 1979). 289 U.S. Const. art. 1, § 8, cL 3. It is well established that congressional power over foreign commerce is absolute. Gibbons v. Ogden, 22 U.S. (9 Wheat) 1 (1824). 290 EAA § 6, 50 U.S.C. app. § 2405(1) (Supp. I1 1979). For a discussion of the EAA's approach to foreign policy controls, see Abbott, supra note 67, at 858-73. 3:211(1981) revolution initiated by [NLRB v.]Jones & Laughlin [Steel Corp.,] it no longer needs citation of authority or argument that under the commerce power Congress. . .can reach matters precedent to or subsequent to interstate or foreign commerce. . . . [In addition,] it can reach strictly local commerce and activities when necessary to make effective a regulation of interstate or foreign commerce.29 1 Therefore, Congress has a broad mandate to regulate interferences with its control over the foreign commerce of the United States.2 92 The federal government could be empowered to restrain protest boycotts through various legislative measures. First, Congress might provide a mechanism to prevent protest boycotts by amending the national emergency provisions of the NLRA. 293 These provisions authorize the President to seek injunctive relief against threatened or actual strikes, which "if permitted to occur or to continue, will imperil the national health or safety. ..9.4 Labor union interference with for291 Henkin, The Treaty Makers andthe Law Makers: The Law ofthe Landand ForeignRelations, 107 U. PA. L. REv. 903, 914-15 (1959) (citations omitted) [hereinafter cited as Henkin]. As the Supreme Court has most recently noted: Foreign commerce is preeminently a matter of national concern .... Although the Constitution, Art. I, § 8, cl.3, grants congress power to regulate commerce "with foreign nations" and "among the several states" in parallel phrases, there is evidence that the Founders intended the scope of the foreign commerce power to be the greater. Cases of this Court, stressing the need for uniformity in treating with other nations, echo this distinction. Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 448 (1979) (citations omitted). 292 Another basis for congressional regulation may stem from the "foreign relations" power. Although the Constitution does not explicitly mention such a power, numerous decisions have referred to the federal government's inherent power in the field of foreign affairs. See Perez v. Brownell, 356 U.S. 44, 57 (1958); United States v. Curtiss-Wright Export Co., 299 U.S. 304, 318 (1936). In one instance, a court has determined that the "federal government's power over foreign affairs" includes the authority "to prohibit any disturbance or interference with" the administration of American foreign policy. United States v. Elliott, 266 F. Supp. 318, 323 (S.D.N.Y. 1967) . Elliott involved an indictment under the Logan Act for conspiring in the United States to destroy a bridge in Zambia for the purpose of profiting from an ensuing mineral shortage. In denying the defendant's motion to dismiss the indictment, the court asserted: The federal government's power over foreign affairs comprises not only authority to regulate relations with foreign countries but also to prohibit any disturbance or interference with external affairs. The offense charged.. . would have disrupted the economy of a nation... [and] would have seriously affected American relations with Zambia. The prevention of the deed and the prosecution of the culprits. . . makes such proceedings imperative and is well within the legitimate interest of the United States Government. Id at 323 (citations omitted). Commentators have also suggested that the foreign affairs power of Congress authorizes "legislation on any subject which deals with, or relates to, or affects the relations of the United States with other nations." Henkin, supra note 291, at 922-24. 293 NLRA §§ 206-210, 29 U.S.C. §§ 176-180 (1976). 294 NLRA § 208(a), 29 U.S.C. § 178(a) (1976). Strikes undertaken by the ILA account for nearly 30% of the occasions in which Presidents have invoked the emergency dispute provisions. Curtin, TransportationStrikes andthe PublicInterest, 58 GEO. L.J. 243, 246-47 (1969). One might argue that not all protest boycotts are of sufficient duration or economic effect to imperil the "national health or safety." Cf.United States v. International Longshoremen's Ass'n, Local 418, 335 F. Supp. 501 (N.D. 1111.971) (strike by dockworkers imperiling national market for eign trade could be eliminated by granting the President the power to restrain conduct which threatens federal control over foreign commerce. Alternatively, Congress could formulate legislation allowing the federal government to seek injunctions similar to the section 10(1) remedies provided for in the NLRA.295 This section allows the NLRB to seek injunctive relief of certain unfair labor practices on behalf of private party complainants pending Board adjudication of the alleged charge. Accordingly, legislation could authorize the federal government to petition for an injunction as a guardian of the public interest whenever protest boycotts cause disruption in the conduct of foreign affairs. Finally, the reach of the Norris-LaGuardia Act,2 96 which withdraws the jurisdiction of federal courts to issue injunctions of "labor disputes,"2 97 could be clarified with appropriate legislation to allow injunctions against protest boycotts. The federal government could then be afforded the power to enjoin such boycotts in circumstances where labor unions inhibit the transportation of goods in foreign commerce. Is Federal Control Warranted? The issue of the propriety of federal control of labor activities directed against foreign governments involves a consideration of whether the exercise of such power is consistent with national interests. In turn, the resolution of this issue rests upon identifying what, if any, restraints upon labor union behavior are justified to ensure a successful control of grain is insufficient to warrant application of national emergency provisions). However, even the institution of a protest boycott by a local union in a single port may touch off an international incident and cause severe dislocations for American foreign commerce. See note 41 supra. Thus, the amendment of the national emergency provisions may be a viable means of preventing protest boycotts. 295 See note 84 supra. 296 Act of Mar. 23, 1932, ch. 90, §§ 1-15, 47 Stat.70 (1932) (codified at 29 U.S.C. §§ 101-15 (1976)) [hereinafter cited as NLA]. 297 The Act provides that "[n]o court of the United States. . . shall have jurisdiction to issue any... injunction in a case involving or growing out of a labor dispute... ?' NLA § 1, 29 U.S.C. § 101 (1976). A "labor dispute" is defined as including "any controversy concerning terms or conditions of employment. . . regardless of whether or not the disputants stand in the proximate relation of employer and employee." Id § 13(c), 29 U.S.C. § 113(c) (1976). Since protest boycotts are undertaken to express political, as opposed to economic views, one may argue that the NLA is inapplicable to activities such as the Russian trade boycott. Several lower courts have accepted this suggestion. See Khedivial Line, S.A.E. v. Seafarer's Int'l Union, 278 F.2d 49 (2d Cir. 1960); Jacksonville Bulk Terminals, Inc. v. International Longshoremen's Ass'n, Local 1408, No. 80-81-Civ.-J-B (M.D. Fla. Feb. 1, 1980); West Gulf Maritime Ass'n v. International Longshoremen's Ass'n, 413 F. Supp. 372 (S.D. Tex. 1975), aj'd,531 F.2d 574 (5th Cir. 1976). But see New Orleans Steamship Ass'n v. General Longshore Workers, ILA Local No. 1418, 626 F.2d 455 (5th Cir. 1980), cert. grantedsubno=., Jacksonville Bulk Terminals, Inc. v. International Longshoremen's Ass'n, Local 1408, 49 U.S.L.W. 3722 (Mar. 31 1981) (No. 80-1045)." foreign policy. Unions engaged in activities similar to the Russian trade boycott may argue that their conduct constitutes political action entitled to first amendment protection. In contrast, those responsible for foreign policy decisions may condemn labor union interferences as detrimental to federal management of international affairs and foreign commerce. Likewise, American firms participating in international business markets pursuant to foreign trade policies may support control of protest boycotts on the grounds that such conduct is beyond the enclaves of the first amendment. Federal regulation of protest boycotts is desirable from the standpoint of maintaining national control over the administration of international relations. Labor union activities arising from an unwillingness to abide by foreign policy decisions interfere with the exercise of government authority over foreign affairs. Indeed, ILA boycotts instituted to eliminate trade with Cuba and North Vietnam illustrate the extent to which labor unions may undermine government policies.2 9 8 Second, protest boycotts may harm relations with American allies when labor unions endeavor to take foreign policy into their own hands. For example, ILA boycotts undertaken in the early 1960 's against European shipping lines trading with Cuba strained American and European cooperative efforts to deal with Castro's Cuba.2 9 9 Likewise, protest boycotts add to the complex and difficult task of implementing American foreign policy. Unfriendly or less informed governments may fail to distinguish between official administration policies and labor union conduct, and may interpret unrestrained protest boycott activities to belie the government's declared policy or indicate official weakness and indecision. The continuance of the ILA's boycott of exports bound for Iran after the conclusion of the recent hostage crisis may, for example, have increased the difficulties attendant to the restoration of normal relations. 300 Accordingly, federal regulation of protest boycotts would reverse the erosion of government control over foreign affairs permitted by successive administrations over the past three decades. Federal regulation of protest boycotts is also desirable in order to facilitate the implementation of American foreign trade policies. Protest boycotts interfere with the international business transactions of American companies participating in foreign trade pursuant to government policies encouraging exports and imports. The liberalization in 298 See notes 42-49 and accompanying text supra. 299 See notes 52-56 supra. 300 The ILA continued its boycott of cargoes bound for Iran for more than 2 months after the conclusion of the hostage crisis. See note 39 spra. post-World War II trade with communist countries which can be attributed to presidential and congressional initiatives in foreign trade policy"' is wholly inconsistent with inaction by the federal government in the face of protest boycotts. This inconsistency betrays and injures those citizens who have relied upon express trade policies. Moreover, any disruption of international trade by private parties should be checked in order to maintain national control over foreign commerce. The climate in which foreign relations are conducted is both too heated and delicate to allow a multiplicity of uncoordinated voices to participate. Finally, when labor unions deliberately interfere with foreign trade policies, their actions are inimical to the democratic system of government since even dissenting citizens must respect and conduct themselves in accord with policies formulated through the legislative process by their representatives. Forceful counterarguments, however, counsel that federal control may be unwarranted, if not improper. The aspects of political expression advanced through protest boycott activities, either directed at other governments or voiced in dissent to American foreign policy, would appear to come within the ambit of first amendment protection. These fundamental values should not be subordinated to an exaggerated deference to foreign policy considerations. Clearly, the Constitution should not be implicitly repealed merely to ease the job of American diplomats. On the other hand, protest boycotts constitute more than mere expression. Labor union activity directed toward foreign governments is objectionable for the very reason that it involves collateral consequences beyond speech. Nevertheless, even conduct lacking constitutional protection may have redeeming value despite its variance from government foreign policy. Experience likewise demonstrates that speech alone may not be a sufficient catalyst to promote socially useful changes. The civil rights movement of the 1960 's and protests directed against United States military involvement in Southeast Asia bear out this observation. Thus, the adverse effect of protest boycott activity upon the administration of American foreign policy may be outweighed by the utility such conduct contributes toward the critical examination of government decision-making on the part of the citizenry. Yet, one might contend that the critical function of dissent in a democratic society may adequately, and more fully be served by expression properly within the protections of the first amendment. A nec301 See ADLER-KARLSSON, supra note 50, at 100-06; Bilder, supra note 151, at 843-62. Northwestern Journal of International Law & Business essary corollary of this concept brings dissent that exceeds the bounds of constitutional freedoms within the scope of government regulation. Accordingly, labor unions may dissent from the foreign policy decisions of government officials through democratic channels3. 2 Protest boycotts are improper for the reason that labor unions are not entitled to make decisions normally made by government officials. Therefore, as legitimate avenues of union dissent may be pursued without the harm typified by the Russian trade boycott, federal control over protest boycotts is warranted. Finally, whether the protest boycott theory enunciated in the foregoing section is accepted, or regulation proceeds at the local level under the rationale of the Baldovin decision, federal control is preferable to reliance upon private parties to control or enjoin protest boycotts. Private parties may be unwilling to bear the expense of suits to challenge protest boycotts, especially in situations where the firm's participation in foreign trade is a minor component of their business. Thus, to the extent protest activities go unchallenged in various localities, the appearance of national unity in the international arena is unattainable. Moreover, even if each local union's participation in a protest boycott is challenged in applicable state forums, the potential for conflicting decisions despite identical factual patterns might contribute to an em302 As Senator Fulbright, former chairman of the Senate Foreign Relations Committee, expressed in his opposition to the ILA's protest boycott against Egyptian ships in 1960: There are constitutional channels through which citizens can bring about changes in the conduct of foreign policy. Actions on the part of the individuals or organizations which interfere directly or indirectly with the constitutional exercise of government authority or activity in the conduct of foreign policy, however ... [is] inimical to the total national interest. 111 CONG. REc. 18, 232 (1965) (remarks of Sen. Fulbright); see also 106 CONG. REc. 8625-26 (1965) (remarks of Sen. Fulbright). In light of the political strength of organized labor, see notes 20-23 and accompanying text supra, unions, through their sheer numbers, may exert considerable influence over the formation of American foreign policy. Unions may also employ alternative means otherwise unavailable to the citizenry to express their disapproval of American foreign policy or the conduct of foreign governments. These measures may include instituting legal proceedings against foreign governments, see [1980] 52 INr'L TRADE RaP. U.S. IMPORT WEEKLY (BNA) at A-15, 17 (United Auto Workers Union petition for import relief under § 201(a)(1) of the Trade Act of 1974, on account of the influx of Japanese automobiles into the U.S. market, denied by the Int'l Trade Comm.); International Ass'n of Machinists v. Organization of Petroleum Exporting Countries, 477 F. Supp. 553 (C.D. Cal. 1979), aftdon othergrounds, 649 F.2d 1354 (9th Cir. 1981) (suit by union alleging that the price-setting activities of OPEC violated § 1 of the Sherman Act dismissed as union members were indirect purchasers from the defendants and thus precluded from seeking damages and injunctive relief), and withholding investments of pension fund assets in companies refusing to condemn the social policies of particular foreign governments. See [1979] 263 P N. REP. (BNA) at A-28, 29; Detroit Free Press, June 23, 1980, at 3, col. 3 (UAW-Chrysler agreement to cease investment of pension funds in companies named by the union as operating in South Africa without supporting the elimination of apartheid). barrassment in foreign affairs.3 3 Therefore, authority to control protest boycotts should be afforded the federal government in light of the important national interests such control would facilitate. CONCLUSION The Russian trade boycott of 1980 -81 is the most recent protest boycott in a long history of labor union interferences with foreign trade policy and the government's conduct of international relations. This Comment contends that federal labor laws should be deemed applicable to protest boycotts. First, the assertion of jurisdiction over protest boycotts is consistent with the underlying policies of the NLRA. The rationale of the Supreme Court's flag-of-convenience vessel cases is therefore distinguishable in the context of protest boycotts. Second, a proper construction of the secondary boycott provisions of the NLRA proscribes labor union pressures directed against domestic companies engaged in foreign trade. Failure to accord the protection of section 8(b)(4) to neutral companies from politically-inspired protest activities would render the prohibition devoid of function. Third, federal control of protest boycotts would appear to be desirable to prevent foreign affairs problems. Remedial legislation authorizing the government to enjoin protest boycotts is suggested. Moreover, in light of the increasing penetration of foreign markets by American companies, the resolution of the coverage of protest boycotts under federal labor laws is crucial to the continuing viability of United State foreign trade policies. Thus, the need is manifest for a clear rule or statute capably addressed to these labor union activities which impact dramatically upon an area of national concern. GeraldL. Maatman, Jr.** 303 Protest boycotts are likely to receive disparate treatment under state laws. See text accompanying notes 160-66 supra. The potential for conflicting decisions, however, is not limited to state courts. Compare Baldovin v. International Longshoremen's Ass'n, 626 F.2d 445 (5th Cir. 1980) and NLRB v. Local 1355, Int'l Longshoremen's Ass'n (Ocean Shipping), 332 F.2d 992 (4th Cir. 1964), with Allied Int'l, Inc. v. International'Longshoremen's Ass'n, 640 F.2d 1368 (Ist Cir. 1981). ** The author would like to thank Professors Mayer Freed and Stephen Goldberg of Northwestern University School of Law for their thoughtful criticisms of earlier drafts of this comment. In addition, the author expresses appreciation for the helpful assistance of Thomas Gies of Seyfarth, Shaw, Fairweather & Geraldson in Washington D.C., and Andre Mazzola of Gleason, Eisenstadt & Mathews in New York City, in providing materials utilized in the research of this Comment 8(b)(4) ................................................ Elements Required to Prove a Section 8(b)(4) Violation ............................................. 1. Threatening , Coercingor Restrainingthe Secondary Employer ......................................... 2. The Forbidden Object-To Force the Cessation of The Scope of Federal Power ......................... 25 N.Y. Times , Aug. 24 , 1950 , at 52, col. 2; id, Sept. 1 , 1950 , at 41, col. 1. The first ship affected by the boycott was a Czech vessel transporting cargoes to the Soviet Union . Id, Aug. 28 , 1950, at 35, col. 2. 26 Id, Sept. 1 , 1950 , at 41, col 1. ILA members in the port of Boston concurred in the boycott City airports joined in the campaign . Id, Sept. 2 , 1950 , at 31, col 5 . 27 Id, Sept. 1, 1950 , at 41, col 1. The media also criticized the ILA locals in New York and Boston for trying to set foreign policy . See, e.g., COMMONwEAL, Sept. 1 , 1950 , at 500, col. 1 . 28 N.Y. Times, Sept. 7 , 1950 , at 63, col. 1. After President Truman's warning, the ILA's Atlan- handling Russian goods "except those vital to defense or the economy" of the United States . 1d 29 Id , Sept. 21 , 1950 , at 47, col. 2; id, Nov. 8 , 1950 , at 59, col 6 . In response to protests from with the Russians and her allies . " Id, Sept. 7 , 1950 , at 63, col. 1. The ILA's Atlantic Council , however, lifted the boycott of Soviet satellite countries under government pressure . Id, Sept. 24 , 1950, at 106, col. 8 . 30 United States ports were essentially closed to Soviet shipping during the 1950's because of LENGE TO THE WEST 26 ( 1979 ). Thus, longshoremen registered their opposition with the Russian government by refusing to handle U.S.S.R. cargoes carried on non-Soviet vessels. 31 The economic structure of the Atlantic and Gulf coast longshore industry is such that the STATISTICS , U.S. DEP'T OF LABOR , 91 MONTHLY LAB . REV. 2 (Jan . 1968 ). Because gains in one tic ports have often ignored the union's official boycott policy . See N.Y. Times, May, 29 , 1967 , at 50, col. 5 . 32 Id, Oct. 30 , 1956 , at 10, col. 5. ILA President Bradley asserted that the union would "re- Hungary. " Id 33 Id, Nov. 10 , 1956 , at 38, col. 1; id, Nov. 11 , 1956 , at 37, col. 2; id, Dec. 1 , 1956 , at 13, col. 2 . 34 Id, Dec. 13 , 1956 , at 74, col. 1. At the requests of Under Secretary of State Robert Murphy, against Soviet-bloc countries . Id 35 Id, Aug. 24 , 1968 , at 16, col.2. In justifying the boycott, ILA President Gleason stated that 43 Id 45 Id, Mar. 4 , 1966 , at 2, col. 4. After the administration added more foreign ships to the trade with North Vietnam." Id 46 In 1968 , the ILA boycotted Swedish ships because the Swedish government had welcomed American military deserters from Vietnam . Id, April 22 , 1968 , at 46, coL 5. The next year , the union picketed Swedish travel liners to protest Sweden's plan to provide $40 million in aid to North Vietnam. Id , Dec. 9 , 1969 , at 54, col. 2. One newspaper editorial commented that the ILA docks to decide what-if anything--the United States should do about the whole thing . " Id 47 Id, Jan. 4 , 1973 , at 3, col 1; id, Jan. 6 , 1973 , at 6, col 4. 48 Id, Jan. 5, 1973 , at 2, col 2. 49 Id, jan. 10 , 1973 , at 2, col. 6 . 50 ADLER-KARLssON, WEsTERN ECONOMIC WARFARE: 1947-1967 106 ( 1968 ). All foreign ships carrying ammunitions to Cuba were barred from American ports . N.Y. Times, Oct. 4 , 1962 , at 1, col. 6. Additionally, foreign vessels visiting Cuban harbors were not allowed to visit United most heavily on European-flag ships. ADLER-KARLSSON, supra , at 106 . 51 N.Y. Times, Oct. 9 , 1962 , at 1,col 6. 52 Id ILA locals had engaged in selective boycotts against foreign shippers carrying Cuban cargoes since 1960. Id, Jan. 5 , 1961 , at 6, col 3. The boycotts spread to numerous Atlantic ports . Id , Jan. 7 , 1961 , at 8, col 3; Id, Jan. 12 , 1961 , at 3, col. 8. Moreover, despite the warnings of cally. id, Mar. 10 , 1961 , at 6, col 1. Litigation began when the boycott spread to include the Orient-Mid-East Lines , whose ships had traded with Cuba . Id, Oct. 26 , 1962 , at 62, coL 1; id, Oct. 27 , 1962 , at 50, col 1. The boycott against the company's vessels ended only after both firms the ILA. Id , Oct. 30 , 1962 , at 70, col 1 . 53 Id, OCt. 9 , 1962 , at 1, col 6. 54 Id, Oct. 6 , 1962 , at 5, col 7. 5 For a discussion of the United States policy toward Cuba during the early 1960's , see 59 146 N.L.R .B. at 727. After unfair labor practices were filed with the Board, the regional director successfully petitioned for an injunction under § 10(1) to restrain the ILA's boycott pend- ing adjudication of the complaint . Penello v. Local 1355 , Int'l Longshoremen's Ass'n , 227 F. Supp. 164 ( D. Md . 1964 ). For a discussion of the role of§ 10(1) injunctions in restraining alleged unfair labor practices , see notes 83-84 infra . The district court also rejected the union's contention that the NLRB lacked jurisdiction absent a labor dispute . 227 F. Supp . at 170 . 60 NLRB v. Local 1355 , Int'l Longshoremen 's Ass'n (Ocean Shipping) , 146 N.L.R.B. 723 , rev'd, 332 F.2d 992 ( 4th Cir . 1964 ). 61 Id at 995. 62 Id at 996 . 63 To justify its departure from the practice of courts to avoid the resolution of issues not in Recent Cases , 78 HA~v. L. Rnv. 463 , 465 n. 11 ( 1964 ). 64 332 F.2d at 998. The Russian Trade Boycott of 1980-81

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Gerald L. Jr. Maatman. Protest Boycotts and Federal Labor Laws: The Russian Trade Boycott, Northwestern Journal of International Law & Business, 1981,